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Tennessee, the great home of JETLaw and hot chicken, once again leads the way into the brave new world of Internet law. In the wrong direction.
After this month’s banning of shared passwords, Tennessee just passed a bill making it a crime to “transmit or display an image” online that is likely to “cause emotional distress.” The bill amends Tennessee Code Title 39, Chapter 17, Part 3, which made it illegal to get into direct contact with someone – via e-mail, phone, etc. – in a manner the sender “reasonably should know” would “cause emotional distress” to the directly contacted recipient.
That’s all well and good because the law up until this point involved purposeful contact with an individual. Under that framework, the person communicating with the victim does so directly, so in most cases probably has some knowledge of whether the particular communication would “cause emotional distress” to the that person – like a photo in a compromising position. Section 1 of the newly amended version, which takes effect in July, only requires a potential criminal to “transmit or display” an image with a “reasonable expectation that the image will be viewed by the victim.” That means that anyone can be a potential victim regardless of whether the “victim” was the intended recipient. Depending on how courts interpret this language, the “reasonable expectation” requirement, which seems to temper the provision, may just be smoke and mirrors.
Particularly troubling is that the bill includes social networks as a means for transmission of the image, which greatly increases the chance that someone will feel emotionally distressed by the image. Given the state of the content on MySpace, for instance, it’s more likely than not that there are many people who will soon find themselves deemed criminals. Of course, now there’s even more reason to be concerned about what’s posted on actually legitimate social networking sites like Facebook.
If you’re concerned about constitutional issues, you’re not the only one. Eugene Volokh of UCLA Law does a good job at pointing out some of the more disconcerting situations that could lead to prosecution under the law, underscoring how broad this application can be.
Ars Technica points out that this amended bill, specifically the provision that allows law enforcement to obtain information related to the investigation from the social network with only a court order, may clash with the Sixth Circuit’s U.S. v. Warshack, which held that officials needed to obtain a full search warrant to access personal email.
In any case, Tennessee is correct in recognizing that posting media can have a detrimental impact on certain people, and it makes sense to regulate this issue. However, with the way the law is written, it casts too wide a net in identifying victims and criminals. There should be a stronger link between the action and the person who feels victimized, perhaps with a heightened intent requirement relating to individuals. That is, the law should focus more on the poster’s state of mind than the “victim’s.”
- David Rutenberg
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