• by Wendy Davis  @wendyndavis, June 8, 2009

The new "online harassment" statute makes it a felony to create phony profiles on social networking sites with the intent to "harm, defraud, intimidate, or threaten" others. The statute defines commercial social networking sites broadly, saying they include any sites that allow people to register to communicate with others or create Web pages or profiles. (Email programs and message boards are excluded from the definition.)

The law was sent to the Texas governor for signature last week.

The move comes at a time when fake profiles are increasingly in the news, thanks largely to the relatively new phenomenon of phony Twitter accounts. Last week, it was widely reported that one such account had already led to a lawsuit. In that case, St. Louis Cardinals manager Tony LaRussa alleged that the parody account infringed his trademark.

The Texas law conceivably addresses those types of profiles on Twitter, although it's not clear that courts would find that parody creators do so with an intent to "harm" or "intimidate."

It's also not certain that the law would hold up in court. Internet law expert Eric Goldman, director of the High Tech Law Institute at Santa Clara University, says the Texas law appears problematic for at least two reasons: it singles out social networking sites and bans speech that might be permissible. "The whole social networking exceptionalism is ridiculous," he says. "There's no way to distinguish social networking sites from other sites."

And, he adds, the attempt to ban fake profiles might be unconstitutional because it could end up also criminalizing legitimate speech. "There's so much potential speech that's covered by this, it makes me nervous," he says.

Last year, a Texas appellate court invalidated another harassment law that made it a crime to send repeated emails "in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another." In that case, the court ruled that the law potentially criminalized speech that was allowed under the First Amendment.

Texas isn't alone in trying to crack down on Internet harassment. Policymakers throughout the country have proposed new laws addressing cyberbullying on social networking sites in wake of the Megan Meier suicide, and at least one politician, Rep. Linda Sanchez (D-Calif.), has introduced a federal measure.

The Texas law, however, doesn't seem to address the Megan Meier situation because no one was impersonated in that case. There, 40-something Missouri resident Lori Drew allegedly helped hatch a plan to create a fake MySpace profile of a fictional boy, "Josh," who sent messages to 13-year-old Megan. She killed herself after receiving a final message from Josh -- a statement that the world would be a better place without her. (That email didn't come from Drew, but a 20-year-old who used to babysit for Drew's daughter.)

But the Texas statute could potentially cover some other fake-profile incidents, such as a well-publicized case involving Yahoo. In that instance, the ex-boyfriend of Oregon resident Cynthia Barnes created a fake profile of her that included nude photos as well as her name, address and phone number.