Our legal system is waging an ongoing struggle to keep up with the sorts of opportunities that new digital communications technologies offer for criminal activity like fraud, theft, and harassment. Sometimes, law enforcement identifies a clear technology-based threat to other individuals or the public. At other times, police and prosecutors pursue people—often children and young adults—for alleged conduct that is at best naive or immature, and at worst non-criminally negligent. Many of these types of alleged offenses involve the use of smartphones and social media in ways that do not make sense to people who remember a life before such technology existed.
Criminal statutes have evolved, in a sense, as our society and technology have advanced. In the 19th century, people began to use the U.S. Postal Service to perpetrate fraudulent schemes. Our legal system created the distinct federal and state offenses of mail fraud as a result. In the 20th century, telephone and television technology drove the creation of wire fraud statutes. Similar changes have occurred with regard to laws against harassment and threats, which can occur via the telephone and email as well as in person.
The only real difference between many alleged offenses today, as opposed to similar ones occurring decades ago, is often the use of new communications technologies, which amplify what might have otherwise been a private remark. A teenager in Texas, for example, was charged with making a terroristic threat, Tex. Pen. Code § 22.07, in 2013 after he allegedly posted in an online video game forum that he was going to “shoot up a kindergarten,” along with other alleged threats that he says were “a poorly thought out sarcastic joke.”
A similar case in Mississippi involved a college student’s alleged use of the social media application Yik Yak, which allows users to post messages anonymously to other nearby users, to threaten fellow students. The U.S. Supreme Court’s ruling in Elonis v. United States, 575 U.S. ___ (2015), which held that offenses involving the communication of a threat require subjective proof of intent to cause harm, is likely to affect these cases.
Some prosecutions for alleged offenses involving social media and smartphones take existing criminal laws and apply them to situations in which they might not fit quite so clearly. Perhaps the most infamous example of this type of situation involves what appear to be changing norms among young people regarding privacy. Specifically, some young people—those who barely remember a world in which no one carried a smartphone with a camera in their pockets—seem to have few or no qualms about sending pictures in various intimate states to their romantic partners or friends.
This behavior obviously involves a great deal of trust, and the abuse of that trust has led to the phenomenon of “revenge porn.” Some prosecutors around the country, however, have charged teenagers with child pornography-related offenses for taking and transmitting photos of themselves. In a recent case involving a similar situation, prosecutors charged a teenager who, on a dare, partly exposed himself for a yearbook photo. No one noticed until the yearbook had been printed and distributed. While the charges were quickly dropped, the case illustrates how quickly prosecutors can react to behavior like this.
These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.
For over 20 years, board-certified cyber crime lawyer Michael J. Brown has advocated for the rights of people facing state and federal charges in West Texas courts. Contact us today online or at (432) 687-5157 to schedule a confidential consultation to discuss your case.
More Blog Posts:
Appellate Courts Split on Question of Cell Phone Tracking Technology and the Fourth Amendment, Texas Criminal Lawyer Blog, February 26, 2016
Court Rules that State May Compel Fingerprint, but Not Passcode, Access to Cell Phone, Texas Criminal Lawyer Blog, January 8, 2015
New Technology Means Electronic Communications Increasingly Monitored in Texas, Nationwide, Texas Criminal Lawyer Blog, July 22, 2012