Facebook Posts Can Land You In Jail!

Did you know that a single Facebook post can land you in jail?  Its true, an acting judge in Westchester NY recently ruled that a ‘tag’ notification on Facebook violated  a protective order.  The result of the violation; second-degree contempt, which can lead to punishment of up to a year in jail.   In January, the a judge issued a  restraining order against Maria Gonzalez, prohibiting her from communicating with her former sister-in-law, Maribel Calderon.  Restraining orders are issued to prevent person from making contact with protected individuals.  Traditionally, courts interpreted contact to mean direct communications in person, mail, email, phone, voicemail or even text.   Facebook tags, however, present a slightly different form of contact.

Unlike Facebook messages, tagging someone identifies the tagged person on the poster’s Facebook page.  The tag, however, has the concurrent effect of linking to the identified person’s profile; thereby notifying them of the post.  Ms. Gonzalez tagged Calderon in a post on her (Gonzalez’s) timeline calling Calderon stupid and writing “you have a sad family.”  Gonzalez argued the post did not violate the protective order since there was no contact aimed directly at Calderon.  Acting Westchester (NY) County Supreme Court Justice Susan Capeci felt otherwise writing a restraining order includes “contacting the protected party by electronic or other means.”  Other means, it seems, is through personal posts put out on social media.

And Social Media posts aren’t just evidence of orders of protection violations, they are also grounds for supporting the issuance of restraining orders.  In 2013, a court granted an order of protection for actress Ashley Tinsdale against an alleged stalker.  Tinsdale’s lawyers presented evidence of over 19,000 tweets that the alleged stalker posted about the actress (an average of 100 tweets per day).

The bottom line:  Naming another on a social media post, even one that is directed to the twittersphere or Facebook community, rather than toward a particular individual,  is sufficient contact for purposes of supporting restraining orders or violations thereof.   We should all keep our posts positives –even more so if we have been told to stay away!!!

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

Would a juror believe that Bob Marley “shot the sheriff” if he posted it to his Facebook Page?

The Second Circuit Court of Appeals recently upheld the prosecution’s introduction of social media evidence to support a conviction against an alleged gang member for narcotics sales, murder and related crimes. The case, United States v. Pierce,  concerned several defendants including Melvin Colon, a member of a Bronx N.Y. street gang.  As evidence against Colon, the prosecution introduced posts Colon made to his Facebook page including a video of Colon rapping “Somebody make somebody nose bleed / I’m OG shoot the Ruger / I’m a shooter,” and a picture of Colon’s hand showing a “Y.G.K.” tattoo.  YGK stands for Young Gunnaz Killer, and Gunnaz was the rival gang against whom Colon committed his violence.

At trial Colon argued that introduction of the Facebook posts violated his First Amendment rights because his conviction “rested on a form of expression, however distasteful, which the Constitution tolerates and protects.” The Court rejected his argument since the speech was not the basis of the prosecution, in other words, Colon was not prosecuted for making the posts, but rather the posts were used as evidence of his participation in a different crime.

The Court also rejected Colon’s argument that the Facebook posts were merely “fictional artistic expression,” which should not be used against him.  The Second Circuit, referencing a recent New Jersey Supreme Court case, acknowledged that violent rap lyrics alone are insufficient to sustain a conviction.  However, where the violent rap lyrics and the like survive a Fed. R. Evid. 403 challenges and their probative value outweighs their danger of unfair prejudice, the evidence is admissible.  The court ultimately sustained Colon’s conviction.

Call them “supper-bloggers” able to shield themselves from immunity because of a federal act.

Tricia Mezzacappa brought suit against Bernie O’Hare for defamation of character. The charge stemmed from anonymous comments posted in response to a blog post O’Hare wrote on his blog, Lehigh Valley Ramblings. For the most part, bloggers are immune from liability for third party comments. The shield comes from Section 230 of the Communications Decency Act, which relieves internet service providers (ISPs) from fault. The legislation was enacted after Stratton Oakmont (yes Wolf of Wall Street Stratton Oakmont) successfully sued Prodigy for failing to removing potentially defamatory comments from its site.  Following the case Congress rightly recognized that holding ISPs responsible for all content posted on its sites would have a chilling effect on ISPs and would threaten the existence of the existence of the internet at all. The unfortunate by product of Section 230 is that plaintiffs who cannot identify defamatory posters because of their anonymity are left remediless.

But here is the tricky part, bloggers can get around the CDA by posting their thoughts as comments rather than as blog posts.   In this particular case, Mezacappa v. O’Hare, Mezzacappa contended that O’Hare was the one who posted the anonymous comments. The Pennsylvania Court of Common Pleas did not address this particular claim and, for several reasons, dismissed the case. In so doing, the court treats a small, manageable blog, one by which the blog administrator can easily monitor content, equal to the AOLs and Googles of the world. Is it fair to relieve a blogger of liability for blog posts that he or she masks as comments, particularly when he or she has the easy ability to delete content? As a blogger I am sighing with relief at the outcome of this case. But as a citizen interested in fairness in dealings…. not so much.

Rebel with a Cause: Ending Revenge Porn

Thanks goodness for “mama bears.” Recognizing the law was not on her side, 55 year old Dr. Charlotte Laws took matters into her own hands after Hunter Moore, alternatively referred to as “The Kingpin of Revenge Porn” and the “most hated man on the internet” posted topless pictures of her daughter Kayla on the website, IsAnyoneUp.com; pictures which Moore allegedly stole from her daughter’s computer and email accounts.

Initially neither the police nor the FBI was willing to assist Dr. Laws in having the pictures of her daughter’s bare breasts removed. It was not until her husband threatened a law suit against Moore that the pictures were taken down. Moore has since been charged with several felonies, including seven counts of aggravated identity theft and seven counts of unauthorized computer use, stemming from hacking Kayla’s computer. Moore has also exposed himself to civil liability. Had Moore initially obtained the photos consensually, the law would have been much more forgiving.

Only a few states currently criminalize revenge porn. Maryland amended its harassment statute in 2014 to include revenge porn, and Texas is considering a bill that makes it unlawful to “disclose or promote visual material.” In 2014 California saw its first conviction under its revenge porn statute.

According to Laws, the author of a new book titled Rebel in High Heels, revenge porn “[is]really more like non-consensual pornography or [as she prefers] to call it cyber rape because … victims act like traditional rape victims and it’s a sex crime.” I am not sure why “high heels” are necessary accessories to decry gender exploitation. But in all seriousness, it is time for all states to criminalize revenge porn, regardless of how photos were obtained.

Should Courts allow Facebook Posts as Evidence of Lack of Remorse?

Last month Orange County Prosecutors charged Victoria Graswald with the murder of her fiancé Vincent Viafore.  Ms. Graswald allegedly tampered with Mr. Viafore’s kayak while the two were boating in the icy (yes again icy – see post below) water of the Hudson River. As a result, prosecutors argue, Mr. Viafore drowned.

Although Mr. Viafore’s body has yet to be found, prosecutors believed that Ms. Graswald’s inconsistent stories, and pictures she posted on Facebook after the accident were sufficient to indict her for her fiancé’s death.  They cite as evidence a picture of Ms. Graswald in a yoga pose against a bucolic setting and a video of her doing a cartwheel.

Facebook posts that demonstrate a lack of remorse have been figuring into criminal prosecutions for a while.  in 2011 Casey Anthony was indicted in the media for posts she shared of a “Bella Vida” tattoo she emblazoned on her back shoulder and pictures she posted showing Ms. Anthony partying while her daughter was still missing.   A California, judge sentenced a woman to 2 years in jail for her first DUI offense (typical first time offenders are given probation).  The judge cited a post- arrest picture the woman posted to MySpace while holding a drink.

But are Facebook posts, with all of their innuendo, a fair measures of guilt.   The Casey Anthony jury probably didn’t think so; although all we know for sure is that the posts, considered as part of the prosecution’s entire case, were not sufficient to lead to a guilty verdict.  And arguably posts, without a body, will not provide the lack of reasonable doubt necessary to convict Ms. Graswald.

But should these pictures hold the weight that members of the criminal justice system increasingly ascribe to them?  A problem seems to be context.  While the pictures seem damning when posted during or soon after an investigation, the evidence is circumstantial at best.  Absent testimony by the defendant corroborating his or her intent at the time of the post, (an event unlikely to happen) jurors can never be certain that the pictures demonstrate an expression of relief or a lack of remorse.

The issue of post-indictment remorse is transcends social media. Prosecutors recently introduced into evidence a picture of Dzhokhar Tsarnaev (the Boston Bomber) flashing his middle finger into a camera from a jail holding cell.  But Tsarnaev’s attorney, like Ms. Graswald’s spun the picture in a way that suggests it has nothing to do with a lack of remorse.

And therein lies the problem, skilled attorney’s on either side can explain  pictures, and intent while posting them, from several different angles.  The issue becomes whether their value is sufficient to justify supporting an indictment for a crime? a conviction? or a sentence?


“There Oughta be a Law”

In February 2015, two young men dared  Parker Drake to jump into a frigid ocean for virtual entertainment. Parker, who doctors diagnosed as having autism spectrum disorder, first “met” the men through twitter. After several exchanges the young men took Parker to the ocean, “for laughs” dared him to jump in and then videotaped Parker’s struggle to return to shore.  The men published the video on Facebook, you could hear them laugh as Parker battled the waves.

Upon discovering the tape, Manasquan, NJ Municipal Court officials charged the men with “endangering the welfare of an incompetent person.”  The problem, however, is that because 19 year old Parker voluntarily jumped into the ocean, the men had not, in fact, committed a crime.

The case is another example of a moral wrong failing to translate into a legal wrong.  Sadly, laws do not exist to punish those who use social media for bullying; just consider the events that prompted Tyler Clementi to jump off the George Washington Bridge.  With this unfortunate event, Parker’s mother joins the rank of parents who fail to see justice in the courts for reprehensible harms committed against their children.

The response to the Parker Drake event, much like the response to many  social media wrongs for which the criminal law offers no retribution, is both outrage and frustration.   Parker’s mother is seeking justice in the civil courts.  The politicians have weighed in too.  Just last week several New Jersey lawmakers announced their intention to draft a law aimed atpunishing individuals who victimized disabled persons.

The law is not well suited for punishment of harms like the one that happened to Parker.  Our Constitution often stands as a roadblock between justice for social media wrongs and the right to voice opinions and ideas.  First Amendment concerns prevent punishing many types of speech, particularly outside of the classroom.   And then there are issues of “void for vagueness.”  A law that punishes those who exploit the developmentally disabled leaves open to interpretation what constitutes “exploitation.” (and I suspect defendants charged in a crime such as this might try to escape punishment by challenging whether his or her “victim” was developmentally disabled.”)

I am interested in seeing the legislation New Jersey law makers propose.  My hope is that they can walk the fine line between justice and free speech.  The lawyer in me, however, suspects that the bill will never make it to the Governor’s desk; as we have seen too many times before, regulating social media bullying in the courts is a nearly impossible task.




Nearby Friends: Facebook’s Newest Way to Guarantee You Are Never in Want of a Friend by Dana Halber

You’re sitting in Starbucks enjoying a cup of Joe thinking how nice it would be if a friend could stop by and join you. With the imminent launch of Facebook’s latest gimmick, Nearby Friends, finding a friend in close proximity to you for coffee becomes instantaneous and effortless; provided you both have opted-in to and turned on the new service.

Nearby Friends is Facebook’s latest attempt to connect people in person rather than online. As quoted in Josh Constine’s Huffington Post article,

Facebook Launches “Nearby Friends” With Opt-In Real-Time Location Sharing To Help You Meet Up, Andrea Vaccari, developer of Nearby Friends, explains the goal of the newest technology is to “make it really easy to discover when someone is around you, and meet up and spend time together.” Nearby Friends will become available within the next few weeks for mobile phones using iOS or Android operating systems. If a Facebook user, only those 18 years or older, chooses to opt-in to Nearby Friends, an icon will appear next to that user’s friends who have also selected to participate in the service. Participants in Nearby Friends will receive notifications from Facebook when friends are within their proximity. Facebook allows users to be discriminatory by giving users the option to share their proximity with all friends or with only specific friends; additionally, an individual’s exact location will not be disclosed, only his proximity to another user. If a user wants to know the specific location of a friend, he can send that friend a forty character message through the Nearby Friends service and ask for his exact address. When Nearby Friends is not specifically turned on, a user’s location is not available to others. However, if a user turns Nearby Friends on and forgets to turn it off, his whereabouts will always be available for all of his participating friends to see.

I guess I understand the benefits to Nearby Friends. It is a great way to find company at a moment’s notice. It easily facilitates an impromptu gathering of friends. However, part of me can’t help but think that Nearby Friends makes society a little lazier. It takes the effort out of picking up the phone and telling a friend you want to see them, then working together to make a meeting happen. There’s something nice about letting someone know that you want to carve time out of your busy life specifically for them, rather than relying upon pure happenstance. But what happens when a user forgets to turn off Nearby Friends when he doesn’t want his relative location disclosed? I can anticipate the trouble that will ensue if one is found to be somewhere he shouldn’t. Whether the user’s behavior at that time is inappropriate or not is irrelevant; it is a realistic issue that can arise from participating in the service. Although leaving Nearby Friends activated at inopportune times is the result of the user’s own negligence, it is not unreasonable to believe that people will forget to turn the service off when they want to go about their business without being bothered by others; if one forgets to turn off Nearby Friends, that luxury becomes obsolete.

I think it is obvious that I most likely will not participate in the new service; however, I will probably be in the minority. I do see the benefit of knowing when a friend is close-by when one is in want of some companionship. However, making a phone call or sending a text message can serve that function, as well. I don’t need my cell phone to disclose my location for me. But perhaps my thinking is just old fashioned…


By Dana Halber

Courtney Love, the grunge rock queen, spent eight days in court at the end of last month standing trial for “Twibel,” the commonplace term for “Twitter libel.” Twibel is the act of defaming another individual through a 140-character Twitter “tweet.”  Love’s former attorney, Rhonda J. Holmes, sued Love for the publication of a reputation damaging Tweet, which implied that Holmes had been “bought off” as the reason for Holmes no longer acting as Love’s attorney.[1]  Love argued that the mass dissemination of the tweet was inadvertent, as she only intended to send it two people, and once she realized it had been published to her 220,000 plus Twitter followers, she deleted the tweet.[2]  Even more legally significant, Love claimed she believed the statement to be true at the time she sent the tweet, demonstrating that Love lacked the “knowingly false or doubting the truth” of the statement requisite to find her guilty of libel.[3]  Ultimately, Love prevailed when the jury determined that she was not liable for defamation.


However, did the jury reach the right verdict?  Although the Los Angeles Superior Court Judge made a precedential decision in holding 140-character or less tweets in California to the same standard as an article written for the Los Angeles Times, the jury clearly was not as strict.  Their leniency can be especially dangerous in establishing precedent in this particular case as Love is a repeat tweet offender.

Venting her frustrations over social media seems to be Love’s pattern of behavior, and the reason she is involved in another pending defamation lawsuit brought by fashion designer Dawn Simorangkir for damaging comments Love made about her on Pinterest and the Howard Stern radio show.[4]  How will Love learn to temper her tweets if she’s only sharing her “opinion”, however damaging it may be, and escaping liability? And, furthermore, what message does the result of Love’s twibel trial send to the American public?  Perhaps it’s time to reevaluate our defamation law in conjunction with social media…


Meanwhile, at roughly the same time Love stood trial, on the other side of the world, Benny Handoko, an Indonesian Twitter user was found guilty of defamation for libelous comments made about an Indonesian politician via Twitter.[5]  Handoko became popular on Twitter after publishing statements in which he referred to former Prosperous Justice Party member Mukhamad Misbakhun as a crook who played a vital role in Indonesia’s Central Bank bailout scandal in 2008.[6]  Handoko was sentenced to one year probation for online defamation in violation of articles 27 and 45 of the Electronic Information and Transaction (ITE) Law, which provides that “anyone found guilty of using electronic media, including social networks, to intimidate or defame others could be liable to six years in prison and a fine” that can amount up to approximately $105,000 U.S.D.[7]  Handoko, refused to apologize for his statements, believing them to be true, as he based them on media reports.[8]  Accessable.


[1] Eriq Gardner, Courtney Love Wins Twitter Defamation Trial, The Hollywood Reporter (Jan, 24, 2014, 5:03 PM), http://www.hollywoodreporter.com/thr-esq/courtney-love-wins-twitter-defamation-673972.

[2] Id.

[3] Id.

[4] Id.

[5] Mong Palatino, How One Twitter Defamation Case Casts a Shadow on Media in Indonesia, Mediashift (Feb. 11, 2014), http://www.pbs.org/mediashift/2014/02/indonesia-twitter-defamation-case-casts-shadow-on-media-landscape/.

[6] Id.

[7] TechLoy Reporter, Indonesian reporter convicted of libel of Twitter, protest surges over draconian internet law, TechLoy (Feb. 4, 2014), http://techloy.com/2014/02/05/indonesian-man-convicted-libel-twitter-protest-surges-draconian-internet-law/.

[8] Palatino, id.

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