A DISCUSSION OF LAW AND JOURNALISM

New Politics: Fake Twitter Accounts

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By Lauren Luptak

As politics in the upcoming presidential election heats up, politicians are creating new and inventive ways of campaigning – they are taking politics to the Internet. Innovation doesn’t come without pitfalls, however. Eric Fehrnstrom, a strategist for Mitt Romney’s presidential campaign, and Scott Brown’s 2012 Senate campaign in Massachusetts, was recently discovered to be the author of a nasty Twitter account, @CrazyKhazei, that poked fun at reporters covering Massachusetts politics and mocked a Democratic candidate in the Massachusetts Senate race, Alan Khazei.

The story broke in late August, posted first by the Blue Mass Group and then picked up by the Washington Post and the Boston Globe. Senator Brown immediately claimed that he was unaware of Mr. Fehrnstrom’s tweeting and ordered the Twitter account to be shut down (which it has been), but the damage was already done.

Mr. Fehrnstrom’s identity was uncovered when he accidentally tweeted an @CrazyKhazei tweet from his personal Twitter account, @EricFehrn. Many of the @CrazyKhazei tweets were distasteful and inappropriate. Although reporters came down hard on him, and one blogger even accused Mr. Fehrnstrom of cyberbullying, he seemed unapologetic and unruffled and in an email, sent August 24, 2011, to the Boston Globe wrote, “Sometimes we take our politics too seriously and this was my way of lightening things up,” followed by a blasé “if you can’t stand the tweet, get out of the kitchen.”

Although there has been expansive media coverage, no one has yet addressed the important legal question arising from this situation. What—if any—are the legal consequences for pretending to be someone else on Twitter?  

Well, someone could try suing Mr. Fehrnstrom for defamation, but we don’t predict that to be a winning move. The Second Restatement of Torts establishes four elements necessary to prove defamation, for outlets including Twitter, Facebook, and blogs. The first element that must be proven is that the statement was false. Mr. Fehrnstrom would respond that he never asserted anything as true – he was merely offering his opinion, about someone running for office, which is, of course, legal. Courtney Love made this argument when she was sued for defamation for her tweets; the case was later settled out of court for $430,000.

 

Additionally, Twitter could try suing Mr. Fehrnstrom for fraudulent use of its services. One of the Twitter Rules states, “Impersonation: You may not impersonate others through the Twitter service in a manner that does or is intended to mislead, confuse, or deceive others.” Further, the Twitter Terms of Service permit Twitter to “detect, prevent, or otherwise address fraud, security or technical issues.” According to Twitter, then, Mr. Fehrnstrom’s tweets violated the Rule, and one of the reasons the fraudulent account was shut down. Impersonating politicians need to watch out for the Twitter Rules to make sure that they are not shut down mid-campaign.

On the other hand, freedom of speech and anonymity on the Internet are generally well-protected by our courts. 1995’s United States v. Baker was a case about an undergraduate student at the University of Michigan who sent email messages outlining a plan to kidnap, rape, torture, and murder a fellow female student. The district court in Michigan held that the student emailer had not violated any federal laws, and stated, “The Internet may be likened to a newspaper with unlimited distribution and no locatable printing press — and with no supervising editorial control.” Twitter had the right to shut down Mr. Fehrnstrom’s fraudulent account – and did. In light of the Baker decision, that’s likely to be as far as Twitter’s involvement in this matter will go.

OK, so can someone who was maligned by Mr. Fehrnstrom’s tweets sue Twitter? Nope. Twitter can rely on protection from Section 230 of the Communications Decency Act, which shields all “interactive computer services” from legal liability for publication by users. This provision of the federal law has been used to protect many social media outlets in much more egregious situations, including fraud and negligent misrepresentation for a sexual assault case.

So, although Mr. Fehrnstrom’s Twitter antics made for hot copy in the media, they will likely not result in legal action. All can look forward to politically charged tweets during this upcoming election, just one more outlet for down and dirty politicking.

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One Response

  1. Jason says:

    Well written article, it makes for a great read.

    On a side note, what’s happening to the freedom of speech? As a great man once said, “I may not agree with what you have to say, but I will defend to the death your right to say it.” Why are we allowing these fanatics to censor our media and our words?!

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