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

May it Please The Court, I’d Like to Tweet Now

Last week, the Iowa Supreme Court submitted a proposal to revise its current rules for expanded media coverage during courtroom proceedings, specifically addressing the use of smart phones, tablets and the like to live blog and tweet. With most of my courtroom experience to date taking place in NY and PA courts I found this to be quite interesting. Although some judges in NY and PA allow certain uses of mobile devices, most courts I have been in had a pretty strict no-cell-phone-use policy. I have, on more than one occasion, witnessed judges stop everything in order to reprimand an attorney or even a gallery member for not having their phone on silent. There are currently 36 states (see survey link below) that have a policy addressing the use Twitter in the Courtroom, but only a handful of those policies actually allow members of the media to use social media to report live from court.

One can immediately see at least some of the upside of allowing live tweets from court, as nationwide-dissemination of a tweet to the general public will grant them instantaneous access and knowledge of everything happening in the proceeding. However, one should just as easily be able to recognize some shortfalls of allowing the use of social media from live court. For instance, what if an empanelled juror came across certain blogs or tweets that affects their impartiality? Can justice truly be served or will the use of social media during a live trail put certain litigants at a disadvantage? With the exponential growth of social media and more and more people getting their news from social media platforms each year, it seems only inevitable that these are questions courts across the country will be facing in the near future. However, according to the most recent survey conducted by the CCPIO, an organization that partners with the National Center for State Courts, we are still further away than one might think from all courts hopping on the Social Media Train.