Last week, the Governor of Tennessee signed a law that makes it a crime to “… transmit or display an image…” online that is likely to “… frighten, intimidate or cause emotional distress… ” to someone who sees it. Violations can earn offenders nearly a year in jail time or up to $2,500 in fines.
The “emotionally distressed” individual need not be the intended recipient. Anyone who sees the image is a potential victim. If a court decides that the sender should have known that the image would upset anyone who sees it, the poster could face months in prison and thousands of dollars in fines.
Constitutional scholar Eugene Volokh recently wrote that the law doesn’t require that the picture be of the victim, and the government need not prove that the poster intended the image to be distressing. Volokh believes the bill is, “… pretty clearly unconstitutional.”
Another provision of the legislation lets law enforcement access the contents of your communications on social networking sites simply by offering “… specific and articulable facts…” suggesting that the information sought is “… relevant and material to an ongoing criminal investigation.” No warrant required.
Julian Sanchez — a privacy scholar at the Cato Institute — told Ars Technica that “this is a lower standard than the federal Electronic Communications Privacy Act requires” for unread communications. More importantly, because Tennessee is in the Sixth Circuit, it is bound by that court’s Warshak decision, which held that the Fourth Amendment requires the government to obtain a full search warrant in order to access e-mail communications. “That case dealt with e-mail,” Sanchez said, “but there’s no good reason to think a private message on a social network site is any different.”