Thursday, June 23, 2011

Tennessee passes dangerously vague law on publishing images of others; also a law on sharing logons

Tennessee  (“The Volunteer State”), the past home of libertarian presidential candidate and author the late Harry Browne, has not been behaving in a very libertarianesque manner recently. Some time back, the legislature passed a law making it illegal to share logons to entertainment services, on the theory that entertainment companies don’t get paid (RIAA wanted this one). Here’s the Techdirt article.  

Now Tennessee plays the implicit content card, which had been mentioned a few years ago in the COPA trial, and which I have discussed with respect to an incident of my own when a substitute teacher (in Virginia).   The PDF for the law is here. Now,  the governor signs this law criminalizing to publish on the Web (as on a social networking site or blog or flat site) an image (or video) that could “frighten, intimidate or cause emotional distress" to a potential target or "a similarly situated person of reasonable sensibilities” unless – and here is where implicit content comes in, there is a “reasonable purpose”. 

California law professor Eugene Volokh publishes some rather humorous analysis of the law’s nonsense on his “Volokh Conpiracy” site (website url) hereIt’s obvious that a law like this is “overbroad” and open to almost any interpretation at all.   The supposed “victim” doesn’t have to even see it – just some third party.  Could a photo of dirty dancing at a gay disco be seen as “intimidating” when it is an extract of a common ritual?

Despite the overbreadth, it may be possible to say that the law is really directed at cyberbullying.

Tennessee is located in the Sixth Circuit, which held recently in (federal) Warshak v. United States that a government must have probable cause and a search warrant to seize messages held by ISP’s.  This law probably won’t last long, constitutionally speaking.

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