Jan. 18, 2013 at 4:31 AM ET
It may be cruel to create a fake online persona and trick someone into falling in love with you, but it's probably not illegal, according to digital law expert Bradley Shear.
The Manti Te'o fake girlfriend saga has brought the issue of online impersonation to the forefront again.
While several states have passed laws making online impersonation of another person expressly illegal, those laws don't apply to invented persons, says Shear.
"If this was purely a game, it would be very difficult to prosecute," Shear said.
California's law, for example, expressly states that it is illegal to impersonate an "actual person."
Of course, much is still unknown about the Te'o case, and it's possible a crime was committed. Some reports suggest the photo used by the fake girlfriend, who went by the name Lennay Kekua, depicts a real person who did not give permission for its use. That would likely amount to criminal online impersonation, Shear said, particularly if -- as has been reported -- she lives in California, or one of the other 11 states that have online impersonation laws.
Also, if intent to defraud Te'o could be proven -- perhaps an intention to fraudulently elicit money to help pay supposed medical bills or somehow blackmail him after he signed an NFL contract -- that would clearly be illegal.
A prosecutor might consider making a case built on the argument that a hoaxer sought to inflict emotional harm against Te'o, but that would be a challenge, Shear said. Such a case would likely end up in a civil court, but even there, Te'o's lawyers would face an uphill battle.
"The bottom line is, what does harm mean? Could it mean emotional harm? It's possible, but in general, I think something more would be needed," he said. “It's very difficult to prove emotional harm."
Fake social media accounts enjoy wide First Amendment protection, Shear said, because the U.S. Supreme Court has long history of protecting parodies through the years.
In fact, lying in general enjoys strong Constitutional protection. Last year, the Supreme Court struck down the 2005 Stolen Valor Act, which made it illegal to sell or wear fake military medals. The high court found the law violated the First Amendment.
"The whole key here is that there [are] major First Amendment problems with making parody or fake accounts against the law," he said.
Fake online accounts have consistently created thorny issues in digital law. They were a major element in the tragic suicide death of 13-year-old Megan Meier, who killed herself in 2006 after an adult neighbor posed as a teenage boy and taunted her. Prosecutors in that case had trouble finding criminal charges that fit the case, so Missouri lawmakers passed an anti-cyberbullying law which, among other things, banned impersonation or anonymously causing emotional distress.
Assuming a case like Te’o’s occurred in Missouri, it’s possible the hoaxster might be liable for criminal charges if the fake account was created expressly to upset someone. The law was designed to protect children, however, and parts of it have already been struck down by the Missouri Supreme Court.
Plus, it's hard to imagine a prosecutor bringing a case saying that a Notre Dame linebacker was cyberbullied.
"At the end of the day, in general, most of what’s going on (with fake online personas) is constitutionally protected," Shear said. "It's too hard to legislate this. That's why education of young people is so important."
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