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When Does Contact Via Social Media Constitute a Crime?

DrThis week's Daily Record column is entitled "When Does Contact Via Social Media Constitute a Crime?"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


When Does Contact Via Social Media Constitute a Crime?

As the use of social media becomes commonplace, criminal courts are increasingly faced with the task of determining which types of social media contact violate the law.

For that reason alone, it’s important for lawyers to familiarize themselves with social media, since it’s difficult to determine whether conduct occurring  via social media sites violates the law in the absence of a basic understanding of social media. 

This very scenario resulted in a somewhat unintentionally comical arraignment here in Rochester last May, as explained by reporter Gary Craig in a Democrat and Chronicle article entitled “Threat Alleged Via Facebook ‘Poke.”

As explained in the article, at first, the judge was unable to proceed, but after obtaining information about the inner workings of social media from the peanut gallery, the judge declined to revoke the defendant’s bail and reserved the right to re-consider the issue at a later point in time:

“Federal prosecutors are alleging that a Hell's Angels member threatened a witness - through a Facebook page "poke." The allegations, which run counter to the motorcycle club's "tough-guy" image, were challenged this morning by a federal judge. Beforehand, however, the courtroom became an open forum in which lawyers, a probation officer, a court reporter, and, yes, even a newspaper reporter were asked by the judge for insight into how Facebook privacy settings work. (Only a few - newspaper reporter excluded - could provide answers.)”

Just a month prior to this arraignment, the Town of Webster Justice Court addressed a very similar issue in People v. Welte, 920 N.Y.S.2d 627. At issue in Welte was whether an accusatory instrument was legally sufficient where the defendant was charged with criminal contempt in the second degree and stalking in the fourth degree. 

In this case, the complainant, the mother of the defendant’s child, alleged that the she had a “no contact” order of protection against the defendant and that the order required that he have no direct contact with her, either directly or through a third party. It was further alleged that he violated the order of protection by obtaining a copy of her Facebook “friends list” and then communicated with her “friends” via Facebook.

This was an issue of first impression and the court noted that there was little, if any, guidance available. So, Justice Thomas DiSalvo wisely applied precedent regarding comparative offline behaviors that were violative of orders of protection to the online conduct alleged in this case, which makes perfect sense, since online behavior is simply an extension of offline conduct:

“Changes in technology, including the way people communicate, continue to present unique challenges to the courts. As of the date of this decision there are no reported cases of anyone charged with violating an order of protection by accessing Facebook. One must then look to cases wherein defendants are charged with indirectly contacting protected persons by making statement to others.”

After considering applicable case law and applying it to the facts of this case, including the specific language used in the order of protection at issue, Justice DiSalvo concluded that the allegations that the defendant simply contacted friends of the complainant were insufficient to support the charges alleged:

“In the instant case the defendant's action in contacting the complainants friends and family via her “Friends List” would not in the normal course of events violate any provision of law. In addition, the defendant was not directed to stay away from the friends and family of the complainant. Lastly, the accusatory instruments do not allege that the defendant was intentionally attempting to contact the complainant through her friends list, only that the defendant was not to contact her through a third person.”

In other words, as I always say, the medium doesn’t change the message. That a new form of communication is used does not make the contact immediately suspect. Instead, it is important to have a basic understanding of the technology being used and to then examine the content of the message and the context in which is was received in order to ascertain whether the conduct constituted a crime. 

Nicole Black is a Rochester, New York attorney and GigaOM Pro Analyst. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in late 2011. She is the founder of and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].

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