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Is Catfishing Illegal?

By Andrew AgatstonJanuary 23, 2013

Is Catfishing Illegal?The Manti Te’o story has garnered, if not gripped, the attention of millions of people across the United States and the world.  After reading Lisa Shaw’s article on this site, “What is Catfishing and Why You Should Care,” I put a search query into my online legal research service to see whether “catfishing” is against any criminal laws in Georgia, the state where I practice.

Not only is it not illegal here, but also you can catch as many catfish as you want.  However, the maximum daily limit for mountain trout is eight.

Yes, the evolution of the law and the evolution of social media change at varying speeds.

At best, there is legal skepticism relating to whether online “catfishing,” without being “hooked” to another more common criminal statute such as criminal fraud, is against the law.  Lisa Shaw defined catfishing as “the faking the identify of a person online to carry out a relationship.”  Using that definition, we have two elements:  (1) faking the identify of a person and (2) the carrying out of a relationship.  I recently spoke to a former prosecutor about this definition, and I was not encouraged that the criminal justice system in many states would become engaged based upon those two elements alone.

But the final facts of the Te’o story have not yet been told.  Depending upon what additional facts are gleaned from this mess, a prosecutor could become more interested, or confidant, that criminal laws were broken.

One other important consideration is determining the state of origin of any alleged catfishing hoax.  Each state has the opportunity to pass legislation addressing online activity that it seeks to prohibit.  And so, for example, as more stories have been written about the Te’o matter, we have learned that there are a number of states that have enacted laws against impersonating others online.  I’ve read articles that have cited such criminal impersonation laws in New York and California, as examples.  If you read these statutes, or any similar statute, the definition of “impersonation” should be prominently set forth in the law.  Only when a prosecutor gains an understanding of all the facts of a catfishing-type case can she make her determination of whether the state’s particular criminal statute was violated.

Many states do not have such impersonation laws, such as Georgia.  But in Georgia there is a law that prohibits inducing others, through the use of the internet, to provide identifying information in certain situations.  So as we see again, depending on the facts of the case — to include the facts of a catfishing case — a local prosecutor can determine whether any of his jurisdiction’s criminal statutes were violated, and move forward or not move forward accordingly.

We also know from experience that the improper use of the Internet which leads to outrageous and even heartbreaking results can cause state legislators to act.  This Te’o matter, according to media reports, has caused him much embarrassment, but thankfully it has not caused him to harm himself or others.  But when such results do occur, legislators will sometime act.

So for example in a different “impersonation” context, we saw that legislative involvement took place in light of the tragic Megan Meier case in Missouri, where 13-year-old Megan took her own life after an adult neighbor posed and impersonated as a boy who friended her first, then tormented her.

Following Megan’s death, the Missouri legislature enacted a statute making criminal harassment a crime when, among other things, a person “Knowingly makes repeated unwanted communication to another person.”   However, very recently, the Missouri Supreme Court, in State v. Vaughn (decided May 29, 2012), struck down that portion as unconstitutional.  The criminal statute ran squarely into the First Amendment according to the Missouri Supreme Court.  The Court wrote, “On its face, this statute criminalizes a substantial amount of protected expression.”  It further recited the potential chilling effect of such a criminal statute:

“For example, individuals picketing a private or public entity would have to cease once they were informed their protestations were unwanted.  A teacher would be unable to call a second time on a student once the pupil was asked to be left alone.  Salvation Army bell-ringers collecting money for charity could be prosecuted for harassment if they ask a passerby for a donation after being told, ‘I’ve already given; please don’t ask again.’ An advertising campaign urging an elected official to change his or her position on a controversial issue would be criminalized.”

So again we have uncertainty, in the criminal law at least, about how far a statute can reach before it runs afoul of competing interests, such as constitutional ones.  But even when the criminal law is unclear, it is essential that good citizens look to other parts of a state’s statutory scheme.  For example, we can look to other laws and policies that emphasize public awareness and public education in the safe and proper use of the Internet.  There is a nice Georgia statute, codified in Georgia’s education code at O.C.G.A. § 20-2-149, that requires online Internet safety to be provided to students.  This is as good a place to begin as anywhere.  It reads:

(a) The Department of Education shall develop a model program for educating students regarding online safety while using the Internet, taking into consideration educational materials on the topic developed by other states as well as any other materials suggested by education experts, child psychologists, and technology companies that promote child online safety issues.

I end where I began, with Lisa Shaw’s article, and her three tips of what parents and caregivers can do in the continuing dialogue with their children:  share current events such as the Te’o matter so kids understand “online trickery”; set digital boundaries for your kids; and use effective technology such as monitoring software to obtain the truth and accuracy of their online activities.  Good advice.

Best regards.

AUTHOR OVERVIEW

Attorney and Legal Expert

Andrew Agatston is an attorney in private practice in metro Atlanta, Georgia. His legal practice is diverse, and includes representing those harmed by the intentionally wrongful conduct of others, including cyberbullying. Mr. Agatston is a frequent national speaker on legal matters involving children and children's rights. Visit him online at http://www.agatstonlaw.com/.

2 Responses

  1. This is very appealing, You might be a really specialist blogger. I’ve joined your feed and look forward to trying to find really the amazing post. Furthermore, I have got discussed your web site inside my myspace

  2. Question.. says:

    Thank you for this article. I have been looking online to find out if there are any laws being broken. A friend of mine has been “seeing” a woman for a year now and things just seemed so strange to me so I did some digging and found out she is not who she says she is and even found the person she was pretending to be. They speak on the phone 4+ times a day and were even “engaged”. She appears to be married so I have been trying to find contact info for her husband to fill him in. We live in Washington state, any idea what the law is here? Thanks!

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