Five not so smart “smart phone” uses: How using your smart phone can lead to criminal conviction

Yes, your mother always told you “everyone is doing it” is not an excuse and nowhere is that this more true than with smart phone use. Just ask the hundreds of students in Canon City Colorado who could face child pornography charges for housing sexts on their phones. Or Owen Labrie, the high school student at St. Paul School convicted last month for luring an underage minor through the Internet.

Truth is, lots of smart phone activity that you may think is o.k. can actually lead you down a path that ends with you having to check the dreaded “yes” box when asked on a college or job application, “have you ever been convicted of a crime?”

 

Here are five not so smart “smart phone” uses and their legal consequences.

 

1.            Sending a sext to an underage friend can require you to register as a sex offender for the rest of your life.

Forwarding a picture of your nude or semi-nude self is child pornography, if, that is, you take the picture before you are eighteen years old.  And regardless of your age, receiving one of those pictures or forwarding them, is also child pornography and can lead to conviction, jail time and a requirement that you register as a sex offender.  Just Ask Phillip Alpert. The 18 year-old forwarded a nude selfie that his 16 year-old girlfriend had sent him. His decision resulted in 72 criminal charges and conviction as a registered sex offender.  Alpert, who by all accounts is a good kid who made a bad decision, is, for the next 25 years, prohibited from living near a school, working with children and using the internet freely.

2.            Catfishing can land you in jail.

Catfishing isn’t just a show on MTV. Catfishing, the practice of impersonating someone to lure another to fall in love, is a crime in some states. California, New York, Texas and Washington are among the states that have criminalized online impersonation. In fact, last year, a New Jersey teen created a fictitious Facebook profile and used it to entice a classmate into an online relationship. The teen, Andriy Mykhaylivsky, lead his classmate to believe that the fake girl had been kidnapped, prompting his duped “buddy” to call the U.S. Embassy and file a missing persons report. As a result of catfishing, Mykhaylivsky was convicted of making false statements to a U.S. official and sentenced to six months in jail and $500.00.

 

3. Consensual sex with an underage minor met through a dating app is statutory rape, even if the minor lied about her age in her profile.

Last year, Zach Anderson communicated with a young woman on Hotornot.com who despite being 14 at the time, listed herself as 17 years old on her profile, and who, by all accounts, looked that age.    Hotornot prohibited 13-17 year olds from accessing the “adults only” sections of the website, so it was reasonable for Anderson to think the girl with whom he was communicating was really 17. After some online flirting the two met up and Anderson engaged in consensual sex with the girl.   Police subsequently arrested a cooperative Anderson and he was charged fourth-degree criminal sexual assault for which he pled guilty and spent 90 days in jail.  As Anderson learned, a misunderstanding as to the minor’s age is no defense to the crime, even if the minor is the one who caused the misunderstanding.  Anderson’s experience is becoming increasingly common, and some estimate that 25% of those convicted of engaging in sex with a minor have experienced a similar circumstance.

 

4.            Luring a minor over the internet is a crime, even if both parties are minors.

Although initially conceived to stop child predators, courts are using the crime of luring a minor over the internet to punish teenage contemporaries. The crime is defined as expressing interest over the internet to meet a person for sexual purposes. When Owen Labrie, a senior at St. Paul School prep school, sent a 15 year old girl a “senior salute” — a spring semester tradition in which a senior boy sends a younger girl an email to solicit a romantic encounter, he was charged with the and convicted of the crime.    In other words, texting someone under 17 about a hook-up could result in a jail sentence.

 

 

5.            Posting on Anonymous Apps is not really anonymous

Since its inception in 2013, police on several colleges and universities have arrested Yik Yakers for posting threating comments on the app.  Last week, police arrested Connor Stottlemyre, a 19 year old  student at Northwest Missouri State for posting a terrorist message in response to the racial unrest at the University of Missouri.   A 21 year old Virginia Tech student pled guilty to harassment by computer after using Yik Yak to post “Another 4.16 moment is going to happen tomorrow. Just a warning,” a reference to the 2007 massacre at Virginia Tech.  In both instances the police were able to access the IP address of the poster and through that information, track him down.  Although Yik Yak is anonymous it maintains a private log of the IP addresses along with the user’s GPS coordinates and the time and place of posting.  If police present Yik Yak, or any other app with a legally valid search warrant, the app is required to turn the information over for investigation, an investigation which often leads to arrest.

 

Best to use smart phones smartly

A Response to “Blurred Lines and the Right to Privacy”

In “Blurred Lines and the Right to Privacy”, Huffington Post writer Debbie Hines urges people to emotionally connect more with issues of online privacy violation.  Ms. Hines boldly claims that the only way she believes action against online privacy violations will be taken is when we feel as emotionally violated in regards to online privacy as we would if someone were to break into our own homes—and she certainly seems to think we should, given that she states that “our online personal data by far out values any possessions in our homes.”  She also invokes the Civil Rights movement as another example of a situation where serious action will only be taken when the public becomes emotionally involved.  The author’s central inquiry is in regards to what will be the emotional stimulus that will ultimately move us in the direction to take action and protect against online privacy violations?

While I agree that online privacy is important in respect to information that is on the internet without your knowledge and consent, I have to disagree with the general tone of Ms. Hines article.  To equate the emotional violation that is online privacy invasions to that of a person’s home being ransacked by burglars is slightly outrageous to me.  Though I do not doubt that at least an equivalent amount of both financial and emotional harm could be achieved through both kinds of violations, the way we have been taught to view the internet makes this an incongruous comparison.  The internet is premised on the notion of open access to information; it is a forum that we all utilize when seeking out any imaginable type of information.  While it’s clear that the author is not referring to limiting this laissez-faire informational exchange, her opinions on such privacy violations seem to negate the general premise, purpose, and intent of the internet.

Furthermore, the expectation of privacy issue needs to be addressed.  In our society, we are taught to view our activity on the internet through a distrustful lense.  We are continually warned of the pitfalls that come from simply ignoring the privacy settings on social media accounts, let alone the far more damaging threats of identity theft, both in regards to our personal, professional, and financial lives.  While I do believe that it would be nice to feel a sense of security on the internet, I just do not think that the public’s expectation of privacy on the internet is particularly high, nor should it be; and it is certainly not near the level of privacy expectation one would have in one’s own home.  To feel as secure on the internet would be dangerously naïve, particularly in light of some of the egregious and highly publicized internet privacy violations that the author refers to.

So while I am in no way belittling Ms. Hines proposition, I think that until the internet is a truly safe place, it would be more prudent and practical to instead focus on taking defensive measures to protect ourselves and our online information.

Is Electronic Vicarious Copyright Infringement a Redundancy?

Vicarous copyright infringement, at least where the Internet is concerned, is nothing more than a redundant tort.   A case filed in December 2013 in Maryland District Court illustrates the proposition nicely. National Photo Group, LLC v. Volunteerus, LLC, plaintiff, National Photo Group (NPG) a photojournalism service, brought a cause of action against Volunteerus for posting NPG pictures without authorization on Bubblws.com, a Volunteerus owned website.

According to the complaint, Volunteerus committed direct, contributory and copyright infringement when it “without permission or control, …improperly and illegally copied, reproduced, distributed, adopted and/or publicly displayed works copyrighted by [NPG].”  According to the facts, NPG prints were made accessible to anyone on the Internet through its publication on the bubblews.com website.

The elements necessary to prove Internet copyright infringement are fairly well settled and a review of the Supreme Court case, MGM Studios v. Grockster, Ltd. provides a nice primer.  The issue for me in National Photo Group is not so much one of whether there was infringement but rather why the tort of vicarious copyright infringement is relevant in the Internet age. In order to prevail under a theory of vicarious infringement, NPG must demonstrate that a third party appropriated the NPG photographs through the Bubblew.com website and that Bubblew.com was  “in a position of control” to authorize the use of an infringing work.  According to the Gockster Court, a defendant exercises control over a direct infringer when he has both a legal right to stop or limit the directly infringing conduct, as well as the practical ability to do so.

But given  both the presumptive nature of and the ease with which anyone can download, print or even email pictures from the Internet it seems the only way to “control” vicarious copyrighters is by not providing these third parties access to the pictures in the first place.  Stated more clearly, vicarious copyright infringement can only occur if the primary copyrighter illegally and impermissibly publishes the photographs on its own sites.  And isn’t the original publication direct copyright infringement.  If so, it seems that vicarious copyright infringement can only occur if defendants engage in direct copyright infringement.  In an age of reposts, retweets, and regrams, it is pretty much a fortiori that directly copyright infringement will always lead to vicarious copyright infringement. Consequently, do we really need both torts?

Did Justice Alito Sanction Court’s Lag Behind Technology

It has been said, many times, that the court system lags dramatically behind technology.  All to often, courts must play catch up – or often gerrymander common law doctrine – to fit previously unforeseen complications from the Internet. (think trespass to chattels and spam).   During oral arguments in Hollingsworth v. Perry, the recent challenge to California’s Prop. 8, Justice Alito reminded those following the case, that the proper role of the Court is one of reflection and not necessarily trailblazing.  Speaking to counsel for those opposing Prop. 8 Justice Alito said, “You want us to step in and render a decision based on an assessment of the effects of this institution, which is newer than cellphones or the Internet?”  Sounds like those who question the speed with which courts react to issues of social media have their answer.  Justice Alito says take your time!