You Can Be Prosecuted for a Fake Facebook Profile

I’ve spilled a lot of virtual ink about criminal charges arising from bad behavior on the Internet. Much of the time, these cases have involved conduct that should be criminalized, such as making threats or committing fraud. Essentially, these are things that have always been illegal in the “real” world, transferred onto the Internet, where they’re still illegal.

I’ve also written about crimes that can only be committed online, some of which clearly should be criminalized, such as breaking into computer systems to steal sensitive information. On the other hand, there have been several high-profile cases of criminal law being applied to online conduct in a way that seems to make little sense. For example, there have been cases of people being prosecuted for “unauthorized access” to a computer system for logging into their work computer after quitting or being fired, or setting up fake MySpace pages.

Last week brought another case of a person being prosecuted for setting up a fake online presence.

A woman set up a fake Facebook profile about her ex-boyfriend, and posted inflammatory statements under his name. She is now being prosecuted for identity theft.

Now, I’m not condoning this woman’s conduct. At the very least, I think she should be subject to civil liability for defamation and invasion of privacy. In this case, I’m pretty much on the fence about whether or not this type of conduct, deplorable as it may be, should expose a person to criminal charges.

On one hand, identity theft is a serious problem, and can ruin people’s lives. However, laws against identity theft are primarily meant to guard against the financial harm caused by fraudulent use of another’s identity. While it’s true that any identity theft can also damage its victim’s reputation, that doesn’t seem to be the main motivation for laws banning it. A couple states, including California and New York, do have laws specifically outlawing online impersonation. New Jersey, where this took place, does not.

So, could the state’s existing law against identity theft be stretched to cover the conduct at issue in this case? According to at least one judge, it can.

If New Jersey had a law specifically prohibiting online impersonation, this prosecution would probably be uncontroversial. But, as a matter of due process, I have a problem with prosecutors stretching criminal statutes to be applied to conduct that the actor may not have reasonably expected to be criminal in nature.

This is because due process of law requires that, among other things, that people have notice of what conduct is illegal. Obviously, if there were “secret” laws, it wouldn’t be fair to punish someone for breaking them, when they had no way of knowing that they existed in the first place.

The best way to mitigate the problem of extremely bad conduct which we haven’t thought to criminalize is, unfortunately, to simply learn from our mistakes. In this case, the proper response would be to lobby the state legislature to change the law, not to stretch existing law to accommodate it.

This is unfortunate because this approach generally requires that the first person to commit a bad act that we decide needs to be criminalized would have to go free, since criminal laws cannot be applied retroactively.

But, as I’ve said before, the price we pay for living in a free society with a fair criminal justice system is that some guilty people will go free.

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6 Responses to “You Can Be Prosecuted for a Fake Facebook Profile”

  1. 1 bebe

    yes, it’s true that identity theft can tarnish the image of someone, totally agree with you, really nice post.

  2. 2 nutrition

    it’s good to know these things, i don’t see the necessity of having a fake profile..

  3. 3 mike deluca

    There seems to be a double standard in New Jersey regarding internet identity theft. I am not sure if it is because the victim in the Thornton case is a police officer, or if the perpetrator in my case, is a friend of a Town official.

    I am the victim of identity theft in New Jersey (Guttenberg) but the local police and the Hudson County prosecutor refuse to prosecute the person who created an email address under my name, sent emails posing as me that are of a perverted sexual nature much to vulgar to print here, and posted messages in the chat room section of my homeowner association blog with the user name mike deluca. I am an advocate of free speech but saying or criticizing someone by stealing their identity to mislead the readers into thinking it is me who is writing those words in something entirely different than free speech.

    I reported this to the Guttenberg police in early August but they have failed to even file a complaint against “Jeffery” who lives in the same condo as me, The Galaxy Towers. Five months have passed but nothing has been done. I reported this to the Hudson County prosecutor’s computer crime division head, Lt. Dezanzo, but he refuses to charge “Jeffery” with identity theft. He said this falls under harassment. He referred my complaint back to the Guttenberg police who have refused to even charge “Jeffery” with harassment. I am wondering if this is because he is a friend and neighbor of the Guttenberg mayor and councilman, Gerald Drasheff and Alfonso Caso or if it is because i am not a police officer. “jeffery” did the same thing to me, as Ms Thornton did to her ex-boyfriend but she was indicted for identity theft, “jeffery” has not even received a complaint for anything and five months have passed.

    “Jeffery” admitted his acts to me, my wife, and two others. Their sworn statements were given to the Guttenberg police. As the admin of my website, i have the IP address of the postings on my website. They trace back to “Jeffery’s” office in Hackensak, New Jersey.

    I recently contacted Hudson County Assemblyman Ruben Ramos who sponsored the Bill that expands the statute to include electronic communications as a form of identity theft. I also contacted Senator Brian Stack. I am asking Mr. Ramos to explain the double standard and ask the Hudson County prosecutor to reconsider the decision not to prosecute “Jeffery”

    What is most puzzling to me is that a Morris County prosecutor and a Morris County judge supports the Bill Mr. Ramos sponsored as a Hudson County Assemblyman along with the amended statute. Both Morris County officials recognize that even though electronic communication is not in the statute, it doesn’t make it less of a crime as the judge indicated in his ruling, but the Hudson County prosecutor does not seem to support the Bill Mr. Ramos sponsored, the amended statute, or the judge’s precedent setting ruling that allowed the Morris County prosecutor to charge ms. Thornton with identity theft. I thought this would have been a great opportunity to show the residents of New Jersey and especially Hudson County, that internet identity theft will not be tolerated and that Mr. Ramos’s Bill are supported by his fellow Hudson County constituents. I am waiting for a response from Assemblyman Ramos.

    My website is
    On the home page there is a link to the chat room blog

    Mike Deluca

  4. 4 Mike

    Can anyone point me in the direction of any examples of this crime being prosecuted in California? I have a situation that comes very close to violating this new law, but I am not sure if it would be taken to trial.

    Thank You

  5. 5 Michael Baggett

    Why does freedom of speech not cover this? If it is intangible or just data-then it is the victim who allows themselves to react and respond. Physical harm is one thing, but verbal abuse is something that only has an effect if the victim allows it to. Very similar to taking offense to something-If you are offended-you choose to be so and that is your fault for choosing to react that way. I know that the government has blatantly developed loop holes for the sake of national security allowing them to detain any citizen for thought’s or words. But he who chooses to sacrifice freedom for security deserves neither. One of our founding fathers, Ben Franklin said this. I guess I’m just ranting cuz I know National Security is pissing all over the constitution.

  6. 6 Jobs in Criminal Justice

    There are many crimes committed also with the help of social media sites like Facebook. Some criminals used this to abuse others. So I agree, criminals should be prosecuted for a fake Facebook profile.

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