Online Impersonation

Online Impersonation is a criminal offense in Texas that involves taking or using someone’s likeness or persona on a social networking site or webpage with the intent to threaten or harm or intimidate that person or another person without that person’s consent. Texas criminalized online impersonation in 2009. Many other states have similar laws, and some categorize this offense as cyberstalking. This law usually winds up impacting former romantic partners of a relationship that do not end very well, culminating with one of the partners creating—in order to get back at that person—a fake Facebook, Twitter, or Instagram profile of the other person. The spiteful person generally ends up completely shocked that this is a thing that authorities might consider a felony in Texas.  

The Online Impersonation Law Has Been Markedly Criticized and Challenged  

Online Impersonation has sustained many legal challenges. It has been denounced and challenged as both vague and overbroad and unclear as to what exactly online impersonation means. It has also been challenged as a violation of the First Amendment right to free speech. Earlier in 2016, a District Court Judge in McLennan County (Waco) held the statute unconstitutional as both an impermissible content-based restriction on freedom of speech as well as overbroad. So, we will have to wait and see what happens to the Online Impersonation statute now on appeal. Will it be scrapped entirely, or will it be changed? Or will the Texas Court of Criminal Appeals decide to keep it intact. But, for now, online impersonation is still a serious crime in Texas. This page examines the law on online impersonation and breaks down different aspects of the criminal charge in detail.   

Is This Charge a Misdemeanor or a Felony?

Online Impersonation is a criminal allegation that can be either a misdemeanor or a felony. It is a crime that has some teeth to it. If a someone creates a social networking profile on Facebook, Twitter, Snapchat, or Instagram, using that person’s name or persona, and that person then suffers “harm” as a result, then the law calls for this to be a third degree felony. This can be severe, and many attorneys and judges have noted that “harm,” as the statute defines it, is quite unclear and ambiguous. And as noted above, the law may have to change or be scrapped altogether. Online Impersonation can also be a Class A misdemeanor. This will be the case when a person sends an email or a text message that references the phone number or other identifying information of someone else under the guise that the one texting or emailing is that person. This must be done both without that person’s consent and with intent to defraud or harm that person. Let’s examine the specific Texas Law.    

What is the Law in Texas on Online Impersonation?

Online Impersonation is located in Section 33.07 of the Texas Penal Code. Chapter 33 of the Texas Penal Code outlines and addresses different computer crimes. As noted above, it is a relatively new law. It was enacted in 2009. Here is the language on the statute:

Section 33.07. Online Impersonation.

  • A person commits an offense if the person, without obtaining the other person’s consent and with the intent to harm, defraud, intimidate, or threaten any person, uses the name or persona of another person to:
  • create a web page on a commercial social networking site or other Internet website; or
  • post or send one or more messages on or through a commercial social networking site or other Internet website, other than or through an electronic mail program or message board program.
  • A person commits an offense if the person sends an electronic mail, instant message, text message, or similar communication that references a name, domain address, phone number, or other item of identifying information belonging to any person:
  • without obtaining the other person’s consent;
  • with the intent to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication; and
  • with the intent to harm or defraud any person.
  • An offense under Subsection (a) is a felony of the third degree. An offense under Subsection (b) is a Class A misdemeanor, except that the offense is a felony of the third degree if the actor commits the offense with the intent to solicit a response by emergency personnel.
  • If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.
  • It is a defense to prosecution under this section that the actor is any of the following entities or that the actor’s conduct consisted solely of action taken as an employee or any of the following entities:
  • A commercial social networking site;
  • An Internet service provider;
  • An interactive computer service, as defined by 47 U.S.C. Section 230;
  • A telecommunications provider, as defined by Section 51.002, Utilities Code; or
  • A video service provider or cable service provider, as defined by Section 66.002, Utilities Code.
  • In this section:
  • “Commercial social networking site” means any business, organization, or other similar entity operating website that permits persons to become registered users for the purpose of establishing personal relationships with other users through direct or real-time communication with other users or the creation of web pages or profiles available to the public or other users. The term does not include an electronic mail program or a message board program.
  • “Identifying information” has the meaning assigned by Section 32.51.    

How is “Harm” Defined?

The criminal penalties hinge on harm: the person who is being impersonated and whose likeness or persona is being appropriated experiencing actual harm. What harm means, as contemplated by this statute, is vague and unclear. As has been noted on this page, it has been criticized by attorneys fighting for their clients as well as by judges. Here is the definition from 33.01 of the Texas Penal Code:

“Harm” includes partial or total alteration, damage, or erasure of stored data, interruption of computer services, introduction of a computer virus, or any other loss, disadvantage, or injury that might reasonably be suffered as a result of the actor’s conduct.      

Reading this definition, it is evident why this definition has incurred so much criticism. The phrase any other loss, disadvantage, or injury is amazingly broad. Reading this, what exactly this phrase means cannot be ascertained with any confidence. Harm could therefore be anything. Time will tell if the Texas Court of Criminal Appeals strikes down this definition, and the Texas Legislature tightens it to better construe its meaning.

 

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