Sunday, September 27, 2009

I Am Art Acevedo

Could the headline to this post, especially if written anonymously in a critical blog comment, lead to third degree felony charges? I didn't mean to harm Austin Police Chief Art Acevedo, but certainly I'd like to bring to ruin his plans to pursue anonymous commenters for potential criminal charges or civil litigation. It all depends on how broadly you interpret a new law that took effect September 1, described thusly by Chris Matyszczyk at Technically Incorrect:
It so happens that Texas passed a state law [effective] September 1 that specifically targets those who "use another person's name to post messages on a social-networking site without their permission and with the intent to harm, defraud, intimidate or threaten." Such willful behavior is now a third-degree felony.
This new law, HB 2003, was yet another "enhancement" bill (a capitol euphemism for criminal penalty hikes) passed out of the House Criminal Jurisprudence Committee - one of 40 new crimes and 36 penalty hikes the Lege created this year, according to the DA's Association.

I didn't watch these enhancement bills closely and neither did the media, but now that Chief Acevedo is threatening to seek prosecutions under the new law, it's worth looking at in more detail.

One fascinating thing about the bill stands out unrelated to the current topic: It's actually a defense to prosecution for using another's name to harm, defraud, intimidate or threaten if you are an employee of a commercial social networking site, an Internet Service Provider, an interactive computer service, a telecommunications provider, or a video or cable service provider. In that case, please, go right ahead!

One wonders why create a defense for companies but not a defense for, say, SATIRE or other First Amendment protected speech? How about an exception for public figures, as we have in libel law? I didn't watch the debate on this bill so I don't know if they just thought it wasn't needed or if nobody brought it up.

An example that arose soon after session, however, raised this issue somewhat prominently: This summer somebody created a funny but rather mean-spirited Twitter site in the name of Harris County DA Pat Lykos, changing it to FakePatLykos (which is still active) after the DA complained and Twitter shut it down.

It was just a gag and nobody with half a brain really thought it was her. But frankly some people are pretty dense, a few didn't get the joke (Jared Woodfill, I'm talking to you), and whether it's intended to "harm" her or not, certainly the author didn't create the site to benefit the DA but to essentially mock her. Is harm to reputation enough to trigger the bill's punishments? Quite arguably. And that's the rub.

There's a particular risk that political figures in law enforcement like the DA and the police chief could use such a statute to seek prosecution of anonymous critics whose speech should be protected. There are existing constitutional protections for that kind of speech but they aren't written in the statute and Texas lawmakers carved out no specific defense the way they did for corporations, leaving the lines for the courts to draw.

Perhaps simple political prudence in the end will be the biggest deterrent to misusing the law that way. It would just be a strategically stupid thing to do. The Statesman editorial board got in the best line of the debate last week on that score, urging Acevedo to accept counsel from George Bernard Shaw, who advised "never to wrestle with a pig. You get dirty, and besides, the pig likes it."

This is Art Acevedo and I approved this message.


Anonymous said...

I can understand why someone would want to curb this type of behavior but making a third degree felony seems an overreach. This type of thing is best handled through the civil process as defamation or whatever tort would apply. Why does Texas feel the need to not just criminalize everything but make everything a felony? Its almost to the point that you can't turn around in Texas without violating some law (but apparently perjury by a police officer isn't a crime). Someone once commented that so many people in Smith County were in jail, on probation or parole that they should just build a fence around the whole county. If the legislature keeps going it won't be long before they'll need to build a fence around the entire state.

Anonymous said...

One thing that bothers me about this (among others) is the fact that there are much, much more important things that needed the legislature's attention that were ignored while they spent their time on this type of nonsense.

Anonymous said...

Hey Scott, this is Art, and the entire discussion APD had, had to do with an internal blogger(s) who was impersonating a commander and also blogging outright lies. It is in the interest of the public for law enforcement agencies to identify employees who break laws and post lies. These are the same people that may be willing to lie in order to make an arrest. Not good. The Statesman story made it sound like APD was more interested in the public, which was not even mentioned during the discussion at APD.

Keep up the good work. Art

Anonymous said...

"It is in the interest of the public for law enforcement agencies to identify employees who break laws and post lies. These are the same people that may be willing to lie in order to make an arrest."

If they were already breaking the law why did we need a new law? If you are worried about law enforcement officers who are willing to lie to make an arrest how about a law that REQUIRES prosecution when a law enforcment officer commits perjury. There is an epidemic of this type of conduct in Texas and it typically goes unpunished.

There were already laws in place to deal with this type of thing through civil lawsuits. Lets just criminalize every tort. Every time someone does something someone else doesn't like lets just put them in jail.

All this law is about is some public officials got mad about something on the internet and they happened to have the clout to get something done in the legislature. Yet, important issues that affect average citizens get ignored.

You mentioned law enforcement officers lying to make an arrest? What about officers who lead or coerce witnesses to identify someone in a line up? I believe there was a bill to address that in the last session that was dropped. The legislature deemed it more important to protect a few public officials from being offended by something on the internet than to address one of leading causes of wrongful convictions. The Texas legislature is a joke and a disgrace.

Art Acevedo said...

I can't wait to stomp all over your Constitutional rights!

JohnT said...

I'm trying to figure out if this statute applies to Usenet. The act exempts electronic mail and message board programs.

By "message board" did the Lege mean Usenet?

Sporging is now common on Usenet newsgroups. Sporge is a portmanteau word meaning "spam" and "forgery". One fakes the headers to pretend to be a real person frequenting the newsgroup, or the real person's netnym, and posts comments diametrically opposed to the real poster's convictions.

sci.crypt, once useful for those of us interested in applying cryptography, for example has been rendered all but useless by sporge attacks.

Does this legislation outlaw Usenet sporging? Or is "message board" a defense for Usenet newsgroups?


jimbino said...

Of course, "... use another person's name to post messages on a social-networking site without their permission..." does not conform to Standard American English. It should read "... use another person's name to post messages on a social-networking site without his permission...."

Amerloc said...

I'm not Art. I may not even be sure who I am any more (surviving multiple decades is a mixed blessing), but maybe...

Maybe we need an amendment that puts any law that someone insists needs "enhancement" on hiatus for a year or two.

I mean, if it's so seriously flawed that the penalties for violation need to be felonized, then maybe, just maybe, it wasn't seriously thought out enough in the first place?

Lest I forget, I am still not Art.

Anonymous said...

So you are going to lock up somebody for up to TEN YEARS because they made a fake MySpace or Facebook page? hahhahahahahahahha What a joke you people are!! This is the stupidest thing that I have ever heard in my life. I'd like to know who the asshole was that thought of this Bill.

Art Acevedo said...

"State lawmakers this year passed a law that took effect Sept. 1 making it a third-degree felony to use another person's name to post messages on a social networking site without their permission and with the intent to harm, defraud, intimidate or threaten."

Hi Scott. This Art Acevedo again. I plan on having each person that posts forgeries of me arrested, beat in the alley before being placed in a squad car, and prosecuted.

Thank you. That is all.

Nick said...
This comment has been removed by the author.
Daniel Pavon said...

The Largest Art Theft in History happened in Austin.

Perverse theft, with teh kidnapping of the Artist son (8months old) and murder of the Artist Father, also the theft of the Artist Homestead and all of his property, even all of his personal documents.

This theft was possible by Austin Police Department Detective Andrew Westbrook, a criminal.

Up to date, Austin Police Department does not allow Daniel Pavon (The Artist ) to press charges.

Art Acevedo, we hope you take this matter in your hands.

Andrew Westbrook Criminal acts include:
Changing other officers testimonies, altering police records, fabrication of records, altered and modified witness statments, interference of police reports, removal of police reports filed by Daniel Pavon, aided the tresspassing into Daniel Pavon Homestead, fabrication of evidence from Andrew Westbrook homestead with Samantha Lowry, and illegal alien who committed the crimes, and much more.
Andrew Westbrook has placed two false warrants against Daniel pavon to prevent him to have due process also Andrew Westbrook has under A DEAD THREAT Daniel Pavon
Evidence of each of these claims are proven on line with the same police reports and
The Case is public, and international.
Art Acevedo, do Justice, protect Texas Residents.
Protect the Laws and Constitutions.
Protect the rights of the people.

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stugrooms said...

It is just pathetic that APD has not takin responsibility for Ciscos death. If this dept thinks it's acceptable to shoot a mans dog on his property and hold no one accountable is pure b.s. Our troops are in a war zone and they have more disipline than officer griffin and they are being shot at! See the diffrence? Officer griffin needs to be held accountable. APD SUCKS!!!!!!!!!!