Police raided a home last week in Peoria, IL, over a fake Twitter account that mocked the city’s mayor.
Jon Daniel, 28, and his housemates were accused of impersonating Mayor Jim Ardis via the parody Twitter account, @peoriamayor. The seldom-used account, which used the mayor’s likeness and email, had a few dozen followers with just as many tweets, many referencing sex and drugs. Twitter shut down the account, but Ardis still had police descend on Daniel’s house with a broad warrant to search for drugs and paraphernalia along with any electronic devices that could have been used to operate the account. No one was charged with “impersonating a public official” — the sole basis for the raid — but police seized computers and arrested one roommate for marijuana possession.
The raid sparked national outrage for abusing police and government power for what was clearly a joke. Ardis defended his actions on Tuesday, saying, “As a person, I felt a victim of sexual doggerel and filth. It was filth. It was absolute filth.”
Yet in the Peoria case, “there was no underlying crime — parody is protected by free speech under the First Amendment,” David Greene, senior staff attorney for the Electronic Frontier Foundation in San Francisco told ThinkProgress. The problem arises, however, when police think using social media itself is the crime, Greene said.
Under current law, what users publicly post online is akin to having a conversation in a public park — anyone, including the police can use and interpret it, Greene said, but “whether it reveals anything is another issue.” Police often struggle to differentiate crimes that happen in real life from online speech.
“There’s a strong potential that overreaction from government officials in prosecuting online commentators will chill political speech,” Emma Llansó, director for the Free Expression Project at the Center for Democracy and Technology in Washington, D.C., told ThinkProgress. While some comments aren’t protected under free speech, “in general, the First Amendment provides broad protection, even for hateful or offensive comments,” Llansó said. “Overzealous attempts to unmask anonymous or pseudonymous online commentators run directly into the First Amendment right to anonymous speech.”
Speech is rarely criminalized, but when it is, it’s usually for true threats, which are tricky to prove. Threats have to meet a very narrow definition in which the target must feel severe emotional distress or believe he or she could be harmed before they break the law. But when those threats are made over social media, law enforcement seldom investigate further.
Alleged crimes on social media such as slander, stalking, harassment and death threats typically aren’t pursued as aggressively as they would be in person. When it comes to what’s said online, the problem of discerning real crimes from enthusiastic expression is confounded by relatively new, murky laws that haven’t kept pace with new technologies.
There are three federal laws that can be used to prosecute threatening online speech, including the recently reauthorized Violence Against Women Act, which made cyberstalking a federal crime. There are also state laws against cyberstalking or, cyberbullying, also called cyberharassing, in every state.
Nearly all of those laws simply tack on Internet use as a means to stalk, threaten and harass, to existing laws. And how far those laws go — whether they include all electronic communication or just email — varies state to state, often leaving a lot of room for law enforcement discretion when it comes to deciding what cases they pursue.
Because social media outlets like Twitter are rife with negative and threatening comments, law enforcement agencies typically do not treat threatening language online as a serious danger. Still, about 12 percent of people say they have been harassed online, according to a Pew Research survey. And women tend to bear the brunt of it, regularly receiving rape and death threats far more often than men on social media. When such online threats are reported to the police, they’re often treated as empty threats or pranks. That’s what happened when writer Amanda Hess reported a man, who claimed to live in her state, threatened to kill her to local police. The officer didn’t file a report, saying, “Why would anyone bother to do something like that?…This guy could be sitting in a basement in Nebraska for all we know,” she wrote in Pacific Standard magazine.
Even when police have enough evidence showing a pattern of threatening behavior, very few of the offenders are ever convicted. Only 15 percent of people charged with cyberstalking are convicted, largely because the charges are dropped or the defendants plead to lower offenses, according to 2009 data collected on North Carolina cyberstalking convictions. For police to take action, Greene said, the online threat has to incite a sense of imminent physical danger. Most online threats only colloquially constitute harassment, that is they’re more of an annoyance rather than potentially harmful, he said. Those online threats, however, can translate into real-life dangers: Four percent of online users say that they’ve had incidents online put them in physical harm, Pew found.
Police have free range to use what’s posted online as evidence that a crime has or will occur, such as a Facebook post boasting about a planned robbery or a picture of the stolen goods. Some have even started to use Twitter to predict crime, and communicate with the public and journalists in a crisis. But when it comes to online speech, “It’s important for government officials to understand the broader context of a comment — context can make all the difference between seeing something as a threat and understanding a comment to be a joke or parody,” Llansó said.