The Legal Side of Revenge Porn

Untitled by seanmcgrath from Flickr (Creative Commons License)

Untitled by seanmcgrath from Flickr (Creative Commons License)

One of the downsides of technology is most people have the ability to create intimate photos and videos with their smartphones which is now leading to an increase in “revenge porn.” For those of you who don’t know, revenge porn is created when a person takes the photos or videos from their prior romantic relationship and posts them on the internet to humiliate their ex-partner. I think posting revenge porn is juvenile and disrespectful, but there are also legal implications in these situations.

Copyright Infringement
If you take an intimate photo of yourself and send it to your partner, you own the copyright in that image and therefore have the exclusive right to copy and distribute it. If your ex posts it on a website or shares it with someone without your permission, they are likely committing copyright infringement.  If you find a “selfie” photo of yourself on the internet that was posted without your consent, you may be able to get it removed using the Digital Millennium Copyright Act by sending a takedown notice.

Arizona has state laws against cyberharassment and against harassing someone via electronic communications, both of which are punishable by up to six months in jail and up to $2,500 fine. Other states have similar laws. If the person who posted the photos or videos did it with the intent to harass or harm you, the poster may have violated one or both of these laws.

Invasion of Privacy and other Civil Violations
Some people who are victims of a revenge porn situation are interested in a civil lawsuit. They may want to consult a lawyer to determine if the person who posted the pictures or videos likely violated your state’s laws related to invasion of privacy, infliction of emotional distress, and, if they’re making money off of you, the commercialization of your image. These are state law issues so you’d have to have a lawyer compare the facts of your case against your state’s laws.

Challenges in these Cases
One of the challenges in these cases is proving that your ex was the person who posted the photos or videos. The IP address will tell us from where they were posted so if they posted from home, that’s a good indicator that your ex did it. However, some people try to cover their tracks by using public Wi-Fi but there are other ways to gather evidence about the person who posted your intimate photos on the internet to discern their identity. There is always a chance that your ex isn’t the perpetrator but someone he/she shared your photos with (which could be another case against your ex)or a person who got access to your ex’s phone or computer without consent.

Another challenge in these cases is for people pursuing a civil lawsuit, you may win the case by you might not be able to collect if the defendant doesn’t have any money. The defendant doesn’t have any money, you might have a hard time finding a lawyer who will take your case unless you pay for your legal fees.

If you want to watch me jump on my soapbox about revenge porn, I made a video about it earlier this year.

If you are in a revenge porn situation, talk with the police and a lawyer who can discuss all your options. If you want more information about what you can/can’t post on the internet, please check out my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.

You can connect with me on TwitterGoogle+FacebookYouTubeLinkedIn, or you can email me.
You can also subscribe to the Carter Law Firm newsletter.
Please visit my homepage for more information about Carter Law Firm.

How to Prevent Cyberbullying – Tips for Parents

Hopscotch by Dean McCoy Photography from Flickr

Hopscotch by Dean McCoy Photography from Flickr

It’s back to school time and most parents are rejoicing that their little angels are going to be at school 6-8 hours a day for the next 9 months. They’re going to be spending a lot more time than their peer group than during the summer so it might be a good time to review your family’s rules regarding where and how they spend their time online.

I know a lot of parents are concerned about cyberbullying – from a victim and perpetrator perspective. Here are my tips to help parents prevent their child from being involved in a cyberbullying situation.

1. Wherever your children are active online, you need to be there too.
Whatever social media sites your kids are using, you need to have an account and be connected to them, to at least be aware of how and to whom they are communicating. There should be a clear expectation that they can’t create a profile on a site or add an app to their phone without your permission.

2. Address behavior where your child may be bullying others or being bullied.
Have high expectations for your child’s behavior. They can have fun with their friends, but it shouldn’t cross the line into being cruel. You don’t want them to develop the habit of shooting their mouth off whenever they want online.

Likewise, be understanding and empathetic if your child is being targeted by their peers for being different. Support them and don’t ignore it. Work with them to decide the best way to deal with it.

3. Educate your children about communicating with strangers online.
Each family is free to set their own rules, but in general, I don’t recommend that parents allow their children to form relationships with people online that they don’t know in real life.

Carter Law Firm's Postcards

Carter Law Firm’s Postcards

4. Educate your children about the potential effects of every post.
Once a post is out there, you can never fully take it back. It will always be on a server somewhere. Even if the original post is deleted, you have no control over whether others took a screenshot or shared it with others before it was deleted. My rule of thumb is never post anything online that you wouldn’t put on the front page of the newspaper. The same idea should apply to sending text messages and taking pictures with your phone.

5. Know how to access your child’s cell phone.
I generally support respecting your children’s privacy but parents should be able to check their child’s text messages, pictures, and apps if a situation warrants it.

6. Cut off the bully’s access to your child.
There are ways to block users and report abusive people on every social media site that I know of. One of the best ways to help a child begin to feel better is to cut off the bully’s ability to communicate with them. If they’re being bullied via text message, consider changing their number.

7. If your child is being abused, report it to the appropriate social media forum, email provider, or cell phone service provider.
The terms of service have rules against using their forum to harass others and a social media site has the authority to suspend an abusive person’s account if they think it’s necessary.

8. Keep a record of the abuse.
There are times it makes sense to pursue a civil lawsuit or get law enforcement involved. If you do that, you will have to prove that the harassment occurred. A court can be sympathetic to your story, but they cannot punish the wrongdoer without sufficient evidence. Take screenshots of abusive posts on social media sites and don’t delete the abusive emails or text messages.

If you prefer to hear me talk about this topic, I made a video of cyberbullying tips for parents.

If you want more information about the legalities of social media, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you need information or advice about a situation involving your child, please contact a social media attorney in your community.

You can connect with me on TwitterGoogle+FacebookYouTubeLinkedIn, or you can email me.
You can also subscribe to the Carter Law Firm newsletter.
Please visit my homepage for more information about Carter Law Firm.


Maintaining Privacy with an Online Alter Ego

Paper Bag (#95734) by Mark Sebastian from Flickr

Paper Bag (#95734) by Mark Sebastian from Flickr

I just got back from the interactive track of South by Southwest (SXSW) in Austin – the most amazing conference for all things related to social media. I attended as many sessions as I could but there were dozens of other talks I wish I could have attended. I came back to Phoenix buzzing with ideas.

I attended an interesting session by author/journalist Pernille Tranberg from Copenhagen. She co-authored the book Fake It! Your Guide to Digital Self-Defense.  She uses her real name on LinkedIn and Twitter, but she uses fake names on Facebook and for filling out forms online. She has two complete alter egos. Her friends know her fake name on Facebook but she generally doesn’t share that information with others.

In a world that pushes of online transparency, her ideas run in the opposite direction. This is a great tactic for people to use who don’t want everyone looking them up or if they want to have a private online life that is completely separate from their professional life. Having a fake persona makes it less likely that your boss or prospective boss will be able to find you on Facebook or anywhere else you use your fake name. Additionally, if your fake identity is ever stolen it won’t be devastating for you because there are no assets connected to your alter ego.

If you’re interested in creating an alter ego for yourself, check out Fake Name Generator. It will give you a name, address, email address, username, password, profession, and even information like height, weight, blood type, and mother’s maiden name.

Now, does using a fake name violate the terms of service of social media sites that require you to use your real name or have a policy against one person having multiple accounts? Yes. But if no one reports you, how will they ever know?

I also attended a session on Bullying: Social Media as Problem and Solution which featured Marta Gossage, community manager for Reddit. She spoke about how people are encouraged to use pseudonyms on Reddit and by doing so it allows people to share and connect with people in a way that they don’t feel comfortable doing in real life. She said it also reduces the amount of harassment because most people don’t know each other in real life and participants on the site are good at enforcing the ideal that they can attack an idea but not the person.

Marta encourages people to use fake names because it’s easier to share without fear of judgment when no one knows who you are and because it’s easier to delete a fake identity than a real one from the internet. This is particularly true for young people who don’t think before they post and may regret the things they post which might affect their ability to get jobs or accepted into college.

I have a friend who maintained two Facebook profiles during law school – one was under her real name that was mostly a placeholder in case a professional contact tried to look her up. The other was under her fake name where she was free to be herself. Knowing what I know about her career plans, it made sense for her to separate her social life from her professional one. (Don’t worry – she doesn’t do anything bad. She’s just a bit of a free spirit in a conservative industry where some might look down on her boisterousness.)

If you want to create a fake persona online, remember what Benjamin Franklin said: “Three can keep a secret, if two of them are dead.” Be careful to only share your fake identity with people who will keep it private.

You can connect with me via TwitterGoogle+FacebookYouTube, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Using the Court of Public Opinion to Stop Cyberharassment

and bullhorns by mikeinlondon from Flickr

and bullhorns by mikeinlondon from Flickr

I recently taught a seminar for the State Bar of Arizona E-Commerce and Technology section. I’m a big believer that if you’re cyberharassed, cyberbullied, or cyberstalked online that you should report it – first to the website or service where it’s occurring and then to the police if the person continues to misbehave despite being told to knock it off or if the website or service doesn’t do anything about it. She said, in her case, law enforcement wanted to pass the buck to another agency than deal with the problem themselves.

That’s discouraging. What are you supposed to do if you’re being harassed and the people whose job it is to stop this behavior are ignoring you?

My first thought was, “The squeaky wheel gets the grease.” If you keep reporting the problem, the powers that be might realize that doing their job is the best course of action because you’re not going to go away until they do. You might have to go above their heads and report them to their superiors to make this happen. A nasty letter from an attorney written on your behalf might do the trick too.

If that doesn’t work or if you’re in a situation that needs immediate attention, consider turning to the court of public opinion and publicly call your harasser/bully for their bad behavior. Use your social network to rally support for your situation. Contact the media and try to get them to run a story about it. If there’s enough public outcry, maybe the powers that be will do their jobs or the person who’s harassing you will leave you alone.

If you want to turn to the media or social media, my one word of caution is to mindful about what you say. Resist the urge to exaggerate – it might cross the line into the realm of defamation or false light. Instead stick to the facts, your feelings about the facts, and what you want to happen as a result. If you use the media or the public to try to make a change, you have to tell them what you want whether it’s contacting a certain government official, signing a petition, boycotting a business, etc. Don’t tell people to harass the person who is harassing you; that might be soliciting a crime

Be sure to keep copious records so you can back up your facts with evidence if you need to defend yourself. Some people may attack you just to try to shut you up.

My final word on this topic is if you’re going to try to use the media or the court of public opinion to resolve a problem, you’re going to have to grow a thick skin. Some people are vicious and will call you out for calling out someone else. Surround yourself with a strong group of supporters to bolster your spirits when the haters come after you.

If you’re being cyberharassed, consult an attorney in your community to discuss the best strategy to make it stop. You can connect with me via TwitterGoogle+FacebookYouTube, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Bullying is Still a Big Problem

Alone on the School Bus by woodleywonderworks from Flickr

Alone on the School Bus by woodleywonderworks from Flickr

When a stranger belittles a stranger, he’s a jerk. When he hits a stranger, it’s assault.
When a person belittles or hits their romantic partner, it’s domestic violence.
When a parent belittles or hits their child, it’s child abuse.
When a child belittles or hits another child, it’s kids being kids?!?

You’ve got to be kidding me.

National Stop Bullying Day is on February 9th this year. I feel compelled to bring up this topic again because this is a problem that is not going away fast enough.

Bullying is a big problem, and it’s a deadly problem. Suicide is the 4th leading cause of death of youth age 12-19 in the U.S. but it’s the leading cause of death of LGBT teens. Seventeen year-old Josh Pacheco of Michigan committed suicide two months after he came out last November. His family claims his suicide was the result of bullying. The school reported that they didn’t know it was going on, but stories from others have emerged since his death that suggest it was commonly known.

These deaths shouldn’t happen. We all know which kids get picked on at school – you can tell that they’re miserable even if they haven’t directly reported that they’re being abused by their peers. And unfortunately, there are recent reports where families have informed the school that their child was being bullied and they allegedly did nothing. Just this week, there was a report about a mother in Gilbert who moved her daughter to another school because she was being bullied. The girl was allegedly stabbed with a pencil and physically attacked so badly that she had bruises.  The school has an anti-bullying policy in accordance with Arizona law, but officials appeared to ignore it.

This mother did the right thing. She reported the abuse when she learned about it and she took action to protect her daughter’s safety when the school failed to do it. Could she pursue a lawsuit against the school and criminal charges against the perpetrators? Probably, but that’s a personal decision. The mother’s obligation is to her child. I hope the school takes a closer look at their staff’s lack of action when they learned of the bullying and takes steps to remedy it. I suspect the bullies in this situation will move on to a new target unless they are stopped.

If you want to know what laws are on the books in your state regarding bullying, you can look them up here.

If you know or even suspect that bullying is occurring, do something. Don’t say silent and let a child suffer needlessly. And remember, bullying is a learned behavior. There’s a chance that the bullies themselves need help either because they have emotional problems that their family is ignoring it or perhaps the bully is being abused and the only way they know to cope with it is to abuse someone else.

Arizona Cyberharassment & Cyberstalking Laws

It's scary to join an open source project by opensourceway from Flickr

It’s scary to join an open source project by opensourceway from Flickr

When I was planning out my year, I learned that January is National Stalking Awareness month. This inspired me to look up the laws on cyberstalking and cyberharassment in Arizona.

When I think about stalking, I think about the guy who follows you from the shadows and hides in the bushes and watches you with binoculars. They always know where you are and show up wherever you go “by coincidence.” When we first started acknowledging stalking as a crime, the perpetrator had to be within physical proximity to you. In person stalking is still an issue and now we have to worry about cyberstalking too – people tracking you wherever you go via the internet and using your posts against you to know where you’re going and to harass you in person and online. Some of these perpetrators do things like attach a GPS to your car so they can track your movements. Creepy!

Stalking and harassment are different, but there’s often overlap between the two. I think when you’re being stalked, you’re also being harassed once you know you have a stalker but the reverse isn’t always true. You can be harassed without being stalked. These crimes are state law crimes, so the definitions may be different depending on where you live. I recommend you check your state’s laws to make sure that they’ve been updated to include cyberstalking and cyberharassment.

Here are the laws in Arizona:

  • Cyberstalking: Intentionally or knowingly engaging in conduct that would cause a reasonable person to fear for their safety or their immediate family’s safety, including the fear of death. (Class 5 Felony); Penalty: 9 months in jail and up to a $150,000 fine
  • Cyberharassment: Communicating with a person with the intent to harass them or with the knowledge that the person was being harassed. (Class 1 Misdemeanor); Penalty: Up to 6 months in jail and up to a $2,500 fine

There’s also a separate law for harassing someone via electronic communications. The definition and penalty is the same as cyberharassment except that it specifies that it applies to harassing, intimidating, terrifying, and/or threatening someone. It seems redundant.

And that’s just the criminal law side. If you cyberstalk or cyberharass someone, you may also be sued for damages in civil court.

On top of that, you may get in trouble with the company who provided you the means to stalk or harass the person. If you do it from your work computer, you might be fired. If you do it via your school’s network, you could be suspended or expelled. If you do it from one of your social media accounts, you can be kicked off the site.

So what are the take-home lessons?

  • If you’re mad at someone or want to give them a hard time, think twice before you begin your course of action. It may not take much to cross the line into cyberharassment. The consequences might be way worse than you think.
  • If you’re being cyberharassed or cyberstalked, report it – to law enforcement, to the site or company that’s facilitating it, and possibly call a lawyer. Cyberharassment sucks and you don’t have to put up with it.

You can connect with me via TwitterGoogle+Facebook, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Is It Illegal to Tweet Lies?

Last week during Hurricane Sandy, many of us turned to Twitter for up-to-the-minute updates about the storm. An anonymous person using the handle @ComfortablySmug made several tweets.

  • BREAKING: Con Edison has begun shutting down all power in Manhattan
  • BREAKING: Governor Cuomo is trapped in Manhattan. Has been taken to a secure shelter
  • BREAKING: Confirmed flooding on NYSE. The trading floor is flooded under more than 3 feet of water.

It was later revealed that the information was false, but not before these tweets were retweeted more than 500 times according to reports.

Buzzfeed’s Jack Stuef investigated the situation and determined that the anonymous tweeter was Shashank Tripathi, a campaign manager for Republican congressional candidate Christopher Wight. Tripathi has since resigned from his position and tweeted an apology for posting inaccurate information. That was his latest tweet from that account.

The New York District Attorney’s Office was asked to pursue criminal charges against Tripathi for his irresponsible tweeting. It will be interesting to see if he’s charged.

What Might He Be Charged With?
In many situations, it’s not illegal to lie unless you’re entering realms like fraud or identity theft. I did some digging in the Arizona criminal code and I could see a prosecutor making an argument that a person who posts inaccurate information during an emergency could be charged with electronic harassment, falsely reporting an emergency or causing public panic, creating a hoax, or possibly something along the lines of disorderly conduct.

Some of these crimes, like electronic harassment, require a victim and Tripathi didn’t appear to have a target. I wonder if issues like this might make the prosecution’s job harder.

What About Tripathi’s Right to be Anonymous?
Yes, the First Amendment protects your right to free speech, including your right to speak anonymously. It does not guarantee your anonymity. If you want to be anonymous, you have the responsibility of not making it easy for others to figure out who you are. Apparently @ComfortablySmug was unmasked because he posted censored pictures of himself and the uncensored version was easily discovered and revealed his identity.

If he committed a crime, his right to be anonymous also went out the window.

What do you think should happen to Shashank Tripathi? Should he be charged with a crime for tweeting lies about Hurricane Sandy? Please share your opinion as a comment below.

If you want to learn more about your online dos and don’ts, check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.
You can also connect with me via TwitterGoogle+Facebook, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Coming Soon: The Legal Side of Blogging

Coming Soon by Rebecca Wilson

I’m so excited to announce that my first ebook, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed will be released on Amazon next week!

I’ve been blogging since 2009 and I wanted to write a book by a blogger for bloggers about the legal issues that come with having a blog. This book is a combination of multiple research projects on the legalities of blogging that I’ve done over the last two years. This books combines the findings of those projects, dumps the legalese, and gives  bloggers clear information about issues like copyright, privacy, and defamation.

My family and friends are participating in a collective book purchasing event (aka bum rushing the charts) to give my book a boost in Amazon’s rankings next Thursday, October 4th between 10am and 11am Pacific Time. If you’re planning on buying the book, you’re welcome to join us.  And if you love the book, please leave me a review on Amazon.

I’m selling my ebook at $3.99, which is significantly lower than the price many other lawyers put on their books. I wanted my book to be accessible to my audience which is bloggers, not just legal bloggers.

I never could have pulled off this book by myself so I need to thank the people who helped make this possible.

Thank you to everyone else who helped me along the way. It’s been an incredible six months finishing this project. I also made a video about my book’s release here.

Feel free to connect with me via TwitterGoogle+Facebook, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

When Can Someone Post Photos Of You Online?

My Camera by Paul Reynolds

I’ve had a few people ask me about the legalities of posting pictures of other people online. I thought I’d tackle the most common issue with photographs – whether you have a reasonable expectation of privacy. I’m not going to get into commercializing a person’s image or misrepresenting a person. I’m only addressing whether someone can post a picture that they took of you on their Facebook page, blog, Flickr, etc.

No Pants Light Rail Ride 2012 by Devon Christopher Adams

Pictures of You in Public
You have no expectation of privacy in anything you do in public. This includes where you go and what you do while you’re there. For example, I just got an adorable basset hound named Rosie. We take walks every day. I have no expectation of privacy regarding where we walk, what I’m wearing when I walk her, or how I react when she pulls on the leash. That’s all in plain view for everyone to see. Anyone can take a picture of us and post it online, preferably with a caption that says, “Sassy lady and her awesome dog,” and there’s nothing I can do about it (as long as they’re not misrepresenting me or commercializing my image without my consent).

If you’re in a public place and someone snaps a picture of you while you’re falling down drunk, getting arrested, picking your nose, scowling at a crying baby, or not wearing pants, there’s probably nothing you can do if that picture shows up online somewhere.

The exception to this rule is you have an expectation of privacy in places like public bathroom stalls, changing rooms, tanning salons, and doctor’s offices that may require you to be partially or completely undressed.

Pictures of You in Private Venues
When pictures are taken of you at a private event or in someone’s private home, you have to ask whether you had an expectation of privacy in each particular situation. If you attend a party where there are no rules regarding photos and everyone has their cameras out, you have no expectation of privacy if someone takes a photo of you and puts it in their online album.

Some events come with ground rules regarding photos that could create an expectation of privacy. I had a friend in college who had a Decorate Your Nipples theme party where everyone had to decorate their chest. Some people put decorations on their shirts and some people opted to decorate their skin. The rule for that party was that no cameras were allowed except during the designated picture time. At picture time, all the photos were limited to one room. If you didn’t want any photographic documentation of your being at that party, you had to go to the no-camera room.

There may be activities where there are no specified rules about photographs, but where the nature of the event or activity gives you an expectation of privacy. For example, if you and your partner make a sex tape or take intimate pictures of each other, there’s an inherent expectation that no one beside you two would see them. If you break up, your partner can’t post the pictures online and protect themselves by saying that you never agreed to keep them private.

When it comes to the question, “Can I post pictures of other people online?,” the answer is always, “It depends.” My general rule of thumb is “Don’t do anything in public that you wouldn’t put on the front page of the paper.” When it comes to photographs, the same rule generally applies because you might end up in a situation where you had an expectation of privacy but someone posted a picture of you online that they shouldn’t have. You might have a case against the jerk who posed it, but you still have to deal with the possibility that a lot of people saw a photo of you that they should have never seen.

If you want more information about the legal rules regarding social media, please check out The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. I also maintain a mailing list where I share my thoughts about being a lawyer/entrepreneur, updates about projects I’m working on, upcoming speaking engagements, and I may provide information about products, services, and discounts. Please add yourself if you’re interested. You can also contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.