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Facebook Hijinks No Joking Matter

Posted in Cyberspace Law

By: Nathan Geronimo

We have all participated in practical jokes.  If good-natured, executed correctly, and within the bounds of civility, practical jokes can be a fun way to get closer to people.  However, sometimes jokes can be anything but funny, and in the worst cases can constitute a crime.  In a recent case involving social media sites, California’s Fifth District Court of Appeal found that a minor’s conduct on Facebook constituted identity theft, which can be a misdemeanor or a felony.  In In re Rolando S., a juvenile obtained a classmate’s Facebook login information and accessed her Facebook page.  The minor was able to access the victim’s Facebook page because he received an unsolicited text message with the victim’s email password.  Armed with the email account information and password, he used this information to log into the victim’s Facebook account.  Once in the account, he made obscene changes to the victim’s profile, and posted lewd messages on two of the victim’s male friends’ pages purportedly as the victim. 

The minor was charged with willfully obtaining personal identifying information (which includes unique electronic data) and using it for an unlawful purpose, a violation of California Penal Code section 530.5.  The minor admitted to accessing the victim’s Facebook page and making the offending posts and changes, and he was convicted of identity theft.  On appeal, the minor argued that because he received the victim’s login information via unsolicited text message, that he did not “willfully” obtain the personal identifying information.  The Court disagreed, finding that the minor willfully obtained the information when he chose to remember the password from the text, and used the password to access the victim’s Facebook account.  Essentially, the Court found that the minor demonstrated a willingness to commit the act. 

The minor also argued on appeal that his conduct did not satisfy the second element of the crime of identity theft, the use of the information for an unlawful purpose.  The minor argued that the term “unlawful” refers to crimes only, and does not include civil torts.  At most, he argued, his conduct was not a crime, but the tort of libel, which is the false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation which exposes any person to hatred, contempt, or ridicule, or which causes him to be shunned or avoided.  The Court found that the legislature never intended to limit the definition of “unlawful purpose” to actual crimes, but rather intended “unlawful purpose” to include civil torts as well.  The obscene Facebook posts, the Court found, exposed the victim to hatred, contempt, and ridicule.

Everyone can remember playing jokes in high school or hearing ridiculous rumors about classmates which spread through the school like wildfire.  However, in days past, nobody was ever accused of – let alone convicted of – a crime.  In fact, these relatively minor transgressions were never given much credence or thought.  But times are different.  This case represents yet another way that the law is evolving as technology progresses and shapes our world.  Social media sites are great and powerful tools for communication, and have many beneficial and exciting uses.  However, with power comes responsibility.  This case demonstrates that powerful tools like social media sites, if used for an improper purpose, can expose oneself to liability.  In the worst case, as was the case here, this can mean criminal liability, and possibly even jail time.