In the last ten years, and especially in the last five I have seen a tremendous increase in the amount of crimes connected to use of the Internet. In particular, I have found that Telephone Harassment and Child Pornography have become favorites of law enforcement. The law has evolved to create more and more Internet crimes.
Harassment is an easy charge for police and prosecutors. The law is extremely general and vague. According to Texas Penal Code §42.07, a person who initiates an “electronic communication” with intent to “harass, annoy, alarm, abuse, torment, or embarrass” another, is guilty of a Class B misdemeanor. Now I ask you, what percentage of your texts, Facebook comments or emails would someone classify as annoying or embarrassing? My guess is just about any online disagreement between two parties is going to piss off somebody.
I recently had a jury trial where one of my clients was accused of texting her stepfather, complaining about how he was treating a family member. The content of the texts were hardly incendiary. In fact, the prosecutor tried to make his case by alleging in the pleading that the number of texts itself was harassing. The number of texts in the case, you may ask? Four.
On closing I asked the members of the jury to think back on their own online behavior. Had they ever had an argument with a friend, loved one or ex-spouse? Had they sent more than four texts in that argument? Ten texts? Are we at a point in this society that we can no longer have open forums to discuss, to argue?
The funny thing about the harassment statute is that it heightens normal activity to criminal simply because of the method of communication. There is no law violation when a person has a face-to-face conversation with an individual that the other person considers annoying or embarrassing, no matter how long the conversation goes on. I will admit that the lack of face-to-face conversation provided by the Internet makes actual threats more likely. It is much easier for a person to threaten physical violence when he doesn’t need to be present to say it. And once something is saved in digital form, much like the written word, it lives forever. I’ve had many clients who sealed their own fate by things they said on Facebook.
I wonder what the future holds? How would law enforcement prepare a case if the threat were made on Snap Chat for instance? Would they simply take the word of the alleged victim that the threat was made, even though by nature of the application the proof had evaporated? And what should be made of the “victim’s” own behavior? Threats very rarely occur in a vacuum and there is not one single phone or computer communication application that doesn’t allow an individual to block a sender.
We shall see, but my guess is there will be more need for a good criminal defense attorney in the future.