The quote with which I chose to headline this post is taken from Billy Bragg’s song Rotting on Remand and it captures, I think rather well, the frustrating impotence of the law. The law can take away your life, liberty or property, but it cannot do justice. As an attorney practicing in Louisiana, I deal constantly with this tension, for our Civil Code intones that ”every act whatever of man of man that causes damage to another obliges him by whose fault it happened to repair it.” But la loi civile can only “repair” damage with dollars. Do dollars bring back the family killed by a drunk driver? The criminal law, in its own way, is equally unsatisfying. Later this week, I will explore privacy laws and how they may have affected the situation, too.
The Manti Te’o hoax saga may have found its denouement in a flurry of memes, some jokes and a frankly unsatisfying interview with ESPN on Saturday night. But, I cannot help but feel that there is going to be a second or third chapter to this story, chapters that are going to be written by civil, or criminal, attorneys and judges, and possibly both. Now, nothing that I write here is intended as legal advice. Anyone dealing with these issues should consult a private attorney. If the last week has taught you anything, it’s that you shouldn’t ever rely on someone you meet on the internet.
“Let’s face it, if lying on the internet to create social relationships were criminal, how many users of dating sites would be in danger of arrest?”
When the story of the hoax broke, I immediately thought that someone had to go to jail for this – that it can’t be legal to do this to someone. But, as Ralph Russo, an adjunct professor of Cyber Security and Counterterrorism at Tulane University and a retired Lieutenant Commander with the New York Police Department with twenty-one years experience investigating drugs crimes, organized crime and terrorism, put it to me when I bent his ear the other day, “America is built on the con.” After speaking with him, and looking at a number of sources, including the U.S. Department of Justice’s manual Prosecuting Computer Crimes, the likelihood that anyone will go to jail over the Te’o hoax is probably very low.
Why? A natural question, according to Russo. The situation makes us “clamor for an arrest.” “When viewed from a criminal perspective, one must look for the underlying crime [and a nexus to] life and property. Where are the criminal elements of theft, deprivation of real property, destruction, threat to life, assault [. . .] or harassment? From a federal law perspective, where is the threat to or impediment of government systems, threat to the homeland, civil rights violation, illegal wiretap, or terrorism-related activity? [Under the facts as we know them] the Electronic Communication Privacy Act (designed to protect against illegal wiretapping) or the Computer Fraud and Abuse Act (CFAA) (designed to sop hackers) would likely not apply.”
At this point, there is nothing to suggest that any threats were made or that Manti was asked for anything of value. Whether asking for his checking account number or getting “Pookah” a picture with Skylar Diggins are enough upon which to base a prosecution, under federal or state law, is too Bar Exam-y for me at this point. I raise them only as examples of the conduct we know about right now.
If there is any federal criminal law of which the suspected hoaxer Ronaiah Tuiasosopo and his associates should be immediately afraid, it is 18 USC 1343, which provides, in pertinent part, that “[w]hoever, having devised or intending to devise any scheme or artifice to as defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits, or causes to be transmitted by means of wire, radio or television communication in interstate or foreign commerce, any writings, signs, signals, pictures or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both.” Courts have upheld convictions for “wire fraud,” as this crime is known, for sending a single e-mail (U.S. v. Selby) or making a single reservation with a stolen credit card (U.S. v. Pirello). Again, whether a picture of Skylar or a dozen white roses is enough to support a prosecution is a matter for the Department of Justice. Closer, though, may be the question of the criminality of asking for Manti’s checking account in light of 18 U.S.C. 1029, which criminalizes “access device” fraud.
Hawai’i state law (Hawai’i Rev. Stat. 711-1106) makes it a “petty misdemeanor” to “repeatedly make telephone calls [or] electronic mail transmissions without purpose of legitimate communication” if the person so doing intends to “harass, annoy or alarm” the recipient. Indiana has an equivalent statute (Indiana Code 35-45-2-2) but it, too, is a misdemeanor offense.
Where the hoax perpetrators can face serious consequence is, of all places, the civil law system. Most states, including Indiana and Hawai’i, recognize the tort of negligent or intentional infliction of emotional distress or harm. The consensus approach to this civil action is that the victim suffer a severe emotional injury as the direct result of the tortfeasor’s actions. Here, the intentionality of the bad actors is hard to escape and the breadth of the hoax should satisfy any “extreme and outrageous conduct” requirement. Were Manti able to prove a drop in draft status, with accompanying loss of income and endorsements, he could have a winnable claim. The ability of the perpetrators, though, to satisfy a judgment that large should be questioned given that most liability insurance policies exclude intentional torts, such as assault and battery.
To law enforcement experts like Ralph Russo, it’s important that we not get overly worked-up about the “gee whiz” aspects of the technologies involved in this case. “It has been my belief that attempting to create law from the perspective of the technology is often a mistake, and lends itself to laws that are confusing and likely to impact people far from the spirit of the intended topic.” Technology, then, is “a facilitator or tool to commit traditional crime, much as a hammer can be used in a deadly assault, but is generally used for the betterment of society.”
So, it remains to be seen how this will play out, if in fact it ever does, in the legal system. That being said, if I were one of the hoaxers, I don’t know that I wouldn’t be searching for a good attorney instead of my next victim.