Online Impersonation: Catfishing is Illegal in Texas

Texas Penal Code 33.07 and Social Media Masquerade as Cyber Crime

Catfishing is not the only form of online impersonation, but it may be the most well-known example of it.  The temptation to pretend to be someone they’re not online may be overwhelming for some people, given how easy it is to set up social media accounts and to start communications over the web.

It’s been a popular pastime for many years now.  See, e.g., McHugh, Molly. “It’s catfishing season! How to tell lovers from liars online, and more.” Digital Trends (2013).

What is Catfishing?

Urban Dictionary defines “catfishing” as “[t]he phenomenon of internet predators that fabricate online identities and entire social circles to trick people into emotional/romantic relationships (over a long period of time).”  The term itself comes from the 2010 documentary, “Catfish,” and its corresponding TV series, “Catfish: the TV Show.”

The motivations of the catfish vary.  Consider the CBS-Chicago expose on how fake celebrities (posing as Bruce Springsteen, etc.) convinced people to send them lots of money in various ways (cash, ITunes gift cards, etc.)  See, “2 Investigators: Fans Scammed Out Of Millions Of Dollars By Fake Celebrity Accounts,” written by Pam Zekman and published on September 25, 2018.

Facebook reportedly is testing ways to try and stop catfishing on its site.  Verified accounts on various sites also serve as a tool to discourage catfishing.

Still, you can roam any popular social media site and find examples of what are clearly online impersonators.  For instance, visit Twitter’s people search page to see the number of people tweeting as “@kanyewest” or “@justinbeiber.”

Unknowingly Putting Yourself at Risk of Arrest

From a criminal defense perspective, not enough people understand that online impersonation can be an illegal activity that will get them arrested on either misdemeanor or felony charges.  All too often, the impersonator unknowing places himself (or herself) at risk of arrest and prosecution under state criminal laws.

So when does someone cross the line and become at risk of arrest or conviction because they are using another name on the internet? 

What is Online Impersonation?

In Texas, “online impersonation” has been defined as criminal activity by the state lawmakers.  Key here is the intent of the accused:  it must be shown that they have been active on the internet, impersonating another person, for the purpose of (1) harming people in some way, or (2) intimidating them, (3) threatening them, or (4) defrauding them.

Texas Penal Code 33.07

The law itself gives all the details of the crime of “online impersonation” in Texas Penal Code Section 33.07.  It also clarifies which acts constitute a felony and which are defined as misdemeanor charges.

Texas Penal Code 33.07 states as follows:

ONLINE IMPERSONATION. 

(a)  A person commits an offense if the person, without obtaining the other person’s consent and with the intent to harm, defraud, intimidate, or threaten any person, uses the name or persona of another person to:

(1)  create a web page on a commercial social networking site or other Internet website; or

(2)  post or send one or more messages on or through a commercial social networking site or other Internet website, other than on or through an electronic mail program or message board program.

(b)  A person commits an offense if the person sends an electronic mail, instant message, text message, or similar communication that references a name, domain address, phone number, or other item of identifying information belonging to any person:

(1)  without obtaining the other person’s consent;

(2)  with the intent to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication; and

(3)  with the intent to harm or defraud any person.

(c)  An offense under Subsection (a) is a felony of the third degree.  An offense under Subsection (b) is a Class A misdemeanor, except that the offense is a felony of the third degree if the actor commits the offense with the intent to solicit a response by emergency personnel.

(d)  If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.

(e)  It is a defense to prosecution under this section that the actor is any of the following entities or that the actor’s conduct consisted solely of action taken as an employee of any of the following entities:

(1)  a commercial social networking site;

(2)  an Internet service provider;

(3)  an interactive computer service, as defined by 47 U.S.C. Section 230;

(4)  a telecommunications provider, as defined by Section 51.002, Utilities Code; or

(5)  a video service provider or cable service provider, as defined by Section 66.002, Utilities Code.

(f)  In this section:

(1)  “Commercial social networking site” means any business, organization, or other similar entity operating a website that permits persons to become registered users for the purpose of establishing personal relationships with other users through direct or real-time communication with other users or the creation of web pages or profiles available to the public or to other users.  The term does not include an electronic mail program or a message board program.

(2)  “Identifying information” has the meaning assigned by Section 32.51.

Specific Acts Forbidden by the Texas Online Impersonation Statute

Under Texas’ online impersonation law, it is illegal to do any of the following things using the name or “persona” of someone else (a) without having their permission to do so, and (b) with the intent to intent to harm, defraud, intimidate, or threaten anyone; violation is a felony of the third degree when they:

• create a web page on a commercial social networking site;
• create a web page on any internet website;
• post one or more messages on or through a commercial social networking site, or other Internet website, other than on or through an electronic mail program or message board program;
• send one or more messages on or through a commercial social networking site, or other Internet website, other than on or through an electronic mail program or message board program.

It is also illegal and a misdemeanor to do the following masquerades (a) without obtaining the real person’s consent; (b) with the intent to cause a recipient of the communication to reasonably believe that the real person authorized or transmitted the communication; and (c) with the intent to harm or defraud anyone:

• send an e-mail message that references a name, domain address, phone number, or other item of identifying information belonging to any person;
• send an IM (instant message) that references a name, domain address, phone number, or other item of identifying information belonging to any person;
• send a text message that references a name, domain address, phone number, or other item of identifying information belonging to any person; or to
• send any online communication that references a name, domain address, phone number, or other item of identifying information belonging to any person.

Note: if someone does one of the above four online communications (email, text, etc.) with the intent to solicit a response by emergency personnel, then it rises from a misdemeanor charge to a felony of the third degree.

What is a “commercial social networking site” under the Texas Online Impersonation law?  It is any business, organization, or other similar entity operating a website that permits persons to become registered users for the purpose of establishing personal relationships with other users through (a) direct or real-time communication with other users or (b) the creation of web pages or profiles available to the public or to other users.  It does not include an electronic mail program or a message board program.

Facebook, for example, is an example of a “commercial social networking site” as defined by Texas Penal Code 33.07.

Defenses to Charges of Violating Texas Online Impersonation Law

If you are arrested and charged with the crime of online impersonation, it is vital to have an experienced criminal defense lawyer to help you defend against the charges.  These are serious allegations, even if they are only misdemeanor charges as opposed to the more serious felony counts.

Those arrested for online impersonation risk damage to their personal lives and professional reputations.  Jobs can be lost; careers stalled; scholarships or college hopes compromised.

Arrests for violating Texas Penal Code 33.07 are to be taken very seriously and defended aggressively.

1. Defenses in the Statute

First of all, the statute itself provides the following defined defenses; however, these work to protect the corporations like Facebook, Comcast, and their employees:

(e)  It is a defense to prosecution under this section that the actor is any of the following entities or that the actor’s conduct consisted solely of action taken as an employee of any of the following entities:

(1)  a commercial social networking site;

(2)  an Internet service provider;

(3)  an interactive computer service, as defined by 47 U.S.C. Section 230;

(4)  a telecommunications provider, as defined by Section 51.002, Utilities Code; or

(5)  a video service provider or cable service provider, as defined by Section 66.002, Utilities Code.

2.  Proving of Necessary Element of Intent

The key defense to online impersonation charges lies in the language of the criminal law itself:  the ADA (Assistant District Attorney) must be able to prove with authenticated and admissible evidence that the accused acted with the necessary legal intent.

This means there has to be more than assumptions or innuendo that the accused acted with the motivation to:  (1) harm; (2) intimidate; (3) threaten; or (4) defraud.  Texas Penal Code 33.07.

The criminal defense attorney will consider the prosecution’s case, looking not only for evidence of intent but also for the manner in which the evidence (if any) was obtained.

• Is there any evidence of intent?
• What is it?
• Is there sufficient evidence to meet the prosecution’s burden of proof?
• How was this evidence obtained by the investigators?
• Was there a search warrant? Was it valid?  Was it executed appropriately?

After review, the defense may file a “Motion to Suppress” to argue evidence was not obtained in a legal and constitutional manner, and accordingly must be excluded.  The defense may file a “Motion to Dismiss” the case if there is insufficient evidence to support the charges.

Motivation is the fundamental issue here, because online impersonation happens all the time and it is not always against the law. 

After all, government agents and investigators are involved in online impersonations all the time as they try and find people to arrest for things like child pornography.  Why aren’t they considered “catfish” who are violating the law?

Answer: Motivation.  Their investigatory intent does not meet the elements of Texas Penal Code 33.07.

For more discussion on online impersonations by law enforcement, read our discussions in:

• Child Pornography: Defending Against Overreaching Investigations Using the Internet
• Child Porn Charges: Busted By FBI Computer Surveillance And Now, Private Web Hackers On Social Media
• Federal Child Pornography Charges Often Involve Federal Surveillance Of Online Communications, Personal Email Records, Stored Computer Files.

3.  Constitutional Violation of Free Speech Rights

Third, there are still arguments to be made that your actions were not illegal but instead a constitutionally-protected exercise of your right to free speech.  The circumstances of the situation will determine the context of this defense.

Was the online impersonation an act of free speech (even if on controversial or repugnant topics) as opposed to active stalking or an individual or an attempt to defraud someone?  If so, then there may be constitutional challenges to be asserted against the prosecution’s case.

First Amendment Challenges to Texas Online Impersonation Law

What about freedom of speech?  Isn’t this Texas criminal law by its own terms a violation of every citizen’s right to free speech, guaranteed by the First Amendment (as well as the Fifth and Fourteenth)?

There are some that argue the federal constitution protects online communications, including impersonation, and that Texas Penal Code 33.07 is unconstitutional on its face (as are other similar state laws).

Consider the argument that the Texas Online Impersonation Law fails to be written in a narrow manner to serve a compelling governmental purpose and is therefore presumed invalid, in violation of free speech protections.  A recent challenge to the Texas online impersonation law, arguing its violation of constitutional safeguards of free speech on this basis, was not successful.

On March 29, 2018, the Ninth Court of Appeals issued its Memorandum Opinion in the case of Ex Parte Joseph Boyd (read it here).  Last month (August 22, 2018), the Texas Court of Criminal Appeals refused the defendant’s petition for review by the high court of the Ninth Court’s decision.

For more discussion on the constitutional implications of online impersonation laws, see Hartney, Tyler. “Likeness Used as Bait in Catfishing: How Can Hidden Victims of Catfishing Reel in Relief.” Minn. JL Sci. & Tech. 19 (2018): 277.

As online communications advance, and social media technologies and opportunities evolve, there may be additional constitutional challenges to the current online impersonation statute.  However, for those masquerading online today, they risk being arrested for violation of the Texas Online Impersonation Law.   Right now, Texas Penal Code 33.07 remains active and respected on the books (it’s “good law”).

Other Laws against Online Impersonation

Anyone involved in online subterfuge needs to know about other ways they may be vulnerable to arrest or lawsuit other than the Texas Penal Code.  Federal laws also apply to online impersonation, as do a variety of civil laws established to provide personal injury damages for intentionally bad conduct (tortious acts).

These include both federal laws (e.g., Section 230 of the Communications Decency Act; The Digital Millennium Copyright Act) as well as Texas civil causes of action that include:

• Misappropriation of Name or Likeness;
• Defamation; and
• Fraud.

Civil cases seeking damages may be filed and pursued independently of any criminal prosecution.  These matters move forward under a much lower burden of proof (preponderance of the evidence) than the burden placed upon prosecutors (beyond a reasonable doubt).

Therefore, defendants in online impersonation criminal cases need to be prepared to defend themselves simultaneously in two courtroom battlefields:  fighting for their freedom in the criminal case, and fighting against financial damages being assessed against them in the civil matter.

Criminal Defense of Those Accused of Online Impersonation Crimes

Anyone in Texas who maneuvers through the internet masquerading as another individual runs the risk of being investigated and arrested for violating Texas Penal Code 33.07.   What may have seemed like a fun pastime, a prank, or a joke, can turn into a life-altering event with permanent consequences (even if the charges are dropped).

Depending upon the circumstances, those accused of the crime of Online Impersonation face possible sentencing as either a Class A Misdemeanor or a Felony in Third Degree.  They may be required to pay fines and serve jail time.

Having a zealous and aggressive criminal defense lawyer to advocate on behalf of those charged with Online Impersonation is extremely important.  These representations can be complicated.

Legally, the current Texas court case precedent is not voluminous, sometimes vague, and in some instances, the rulings are released as being without precedential value (see Tex.R.App.P. 47.2(b), 47.7(a)).  The lawyer must build his legal arguments as best he can, often researching court cases within the federal system and sister states for analogies.

Factually, the technologies of internet communications and social media are advancing daily.  The defense lawyer must not only be aware of the current state of things, but he must be prepared to educate in both written motion and in courtroom advocacy on these ever-evolving nuances.

_____________________________________

For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Pre-Arrest Criminal Investigations.”