Rhode Island Attorney General Pushes Yet Another Terrible Cybercrime Bill

from the narrowly-written-legislation-is-a-criminal's-best-friend-(apparently) dept

In what appears to be an annual tradition in Rhode Island politics, legislators (and the state Attorney General) are pinging the First Amendment to see if any new loopholes have developed since the end of the last legislative session. And, of course, it's being done to save the cyberchildren from internet nastiness. (via Overlawyered)

Social media posts, sexually explicit or otherwise, that cause someone's online embarrassment or insult, would become crimes under a set of bills being advanced by Rhode Island Attorney General Peter F. Kilmartin.

Supposedly, the target is cyber-harassment. But the bill's wording is far, far, far too broad.

Unlike current state "cyber-stalking" laws, which require police to prove a pattern of harassing behavior, someone could be prosecuted under the new Kilmartin bill for a single post if at least two others pile on with "separate non-continuous acts of unconsented contact" with the victim. The original post would have to be made with the intent to cause emotional distress and be expected to cause distress in a "reasonable person."

Note the "unconsented contact." Rather than limiting itself to the non-consensual posts of an explicit nature (itself problematic without extensive exceptions), the bill would apparently require messengers to ask permission before delivering any message that might be construed as offensive.

A person shall not post a message to any other person, through the use of any medium of communication, including the Internet or a computer, computer program, computer system, or computer network, or other electronic medium of communication, without the intended recipient's consent, if all of the following apply:

(1) The person knows or has reason to know that posting the message could cause two (2) or more separate non-continuous acts of unconsented contact with the recipient;

(2) Posting the message is intended to cause conduct that would make the intended recipient feel terrorized, frightened, intimidated, threatened, harassed, or molested;

(3) Conduct arising from posting the message would cause a reasonable person to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested; and

(4) Conduct arising from posting the message causes the intended recipient to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

So, having to obtain permission to send messages someone might take the wrong way is Kilmartin's hamfisted way of dealing with online harassment. This changes social media interactions from "I don't want you to get mad, but... " to "I don't want you to press charges, but…" with $1000 and up to a year in jail awaiting the person who fails to receive the go-ahead to send something distressing.

The 'two or more separate non-continuous acts" language is there to close the loophole in the anti-cyberstalking law -- something that has apparently bothered the AG ever since that badly-written law was abused by law enforcement.

There also seems to be some extraterritorial action built into the legislative proposal.

A person may be prosecuted in this state for violating or attempting to violate this section only if one of the following applies:

(1) The person posts the message while in this state;
(2) Conduct arising from posting the message occurs in this state;
(3) The intended recipient is present in this state at the time the offense or any element of the offense occurs; or
(4) The person posting the message knows that the intended recipient resides in this state.

Note that only one of these needs to apply for charge to be brought, so out-of-state residents who may not even know of the law's existence can be prosecuted for violating it.

And then there's the whole "unconsented contact" wording, which makes simple existence practically impossible if one were so inclined to take the legislation at its word(s).

Unconsented contact includes any of the following:

(i) Following or appearing within sight of the victim;
(ii) Approaching or confronting the intended recipient in a public place or on private property;
(iii) Appearing at the intended recipient’s workplace or residence;
(iv) Entering onto or remaining on property owned, leased, or occupied by the intended recipient;
(v) Contacting the intended recipient by telephone;
(vi) Sending mail, or electronic communications to the intended recipient through the use of any medium, including the Internet, a computer, computer program, computer system, or computer network; or
(vii) Placing an object on, or delivering or having delivered an object on, property owned, leased, or occupied by the intended recipient

It's a restraining order, but without the in-writing, signed-by-the-court, legally-binding paperwork! All anyone must do is "express" their desire to be left alone and everything else following that violates the law. This remains true even if the person takes steps to avoid contact ("appearing within sight") or triggers the Grover Cleveland Clause ("two non-consecutive occasions").

The ACLU of Rhode Island is opposing the bill, just like it has during past attempts to push this through. One would hope cooler (and more Constitutional) heads will prevail during the legislative process, but cooler heads are often in short supply when issues like "cybercrime" are discussed.

Filed Under: attorney general, cybercrime, emotional distress, first amendment, harassment, peter kilmartin, rhode island

Post A Picture That 'Causes Emotional Distress' And You Could Face Jailtime In Tennessee

from the outlawing-jerks? dept

Over the last few years, we've seen a troubling trend in various state laws which attempt to come up with ways to outlaw being a jerk online. Many of these are based on politicians and/or the public taking an emotional reaction to something bad happening after some does something online that angered someone else. Of course, while it would be nice if jerks would go away or jerky behavior would cease, that's just not realistic. The real issue is: how can it be constitutional to outlaw being a jerk? In many cases it raises serious First Amendment issues, among other things. The latest to jump into this game is the state of Tennessee, which apparently decided that just throwing people in jail for sharing music subscription passwords wasn't enough: now they want to put people in jail for "causing emotional distress" to others.

The specific law outlaws posting a photo online that causes "emotional distress" to someone and has no "legitimate purpose." While the law does state that there needs to be "malicious intent," it also includes a massive loophole, in that it says that you can still be liable if the person "reasonably should know" that the actions would "frighten, intimidate or cause emotional distress." Eugene Volokh notes all sorts of problems with this:

1. If you’re posting a picture of someone in an embarrassing situation — not at all limited to, say, sexually themed pictures or illegally taken pictures — you’re likely a criminal unless the prosecutor, judge, or jury concludes that you had a “legitimate purpose.”
2. Likewise, if you post an image intended to distress some religious, political, ethnic, racial, etc. group, you too can be sent to jail if governments decisionmaker thinks your purpose wasn’t “legitimate.” Nothing in the law requires that the picture be of the “victim,” only that it be distressing to the “victim.”
3. The same is true even if you didn’t intend to distress those people, but reasonably should have known that the material — say, pictures of Mohammed, or blasphemous jokes about Jesus Christ, or harsh cartoon insults of some political group — would “cause emotional distress to a similarly situated person of reasonable sensibilities.”
4. And of course the same would apply if a newspaper or TV station posts embarrassing pictures or blasphemous images on its site.

Honestly, any time you have a law where the liability is based on how some other person feels, you've got a pretty serious problem. You can criminalize actions, but making someone a criminal because someone else feels "emotional distress" seems like a huge stretch.

Filed Under: emotional distress, free speech, tennessee