State Supreme Court Says 'Smashmouth Journo' Teri Buhl Must Go To Jail For Posting Teen's Journal Pages      ~ Oops ?

by Tim Cushing

Fri, Jul 8th 2016                                                                                                  https://www.techdirt.com/articles/20160707/12050934913/state-supreme-court-says-smashmouth-journo-teri-buhl-must-go-to-jail-posting-teens-journal-pages.shtml

from the bad-laws-make-for-bad-decisions dept

Journalist Terri Buhl -- who gained a bit of Techdirt infamy by claiming her public tweets couldn't be republished (which led to wild claims of copyright infringement and defamation) -- is still dealing with some legal woes of her own, stemming from the posting of someone else's actually private information to Facebook.

Teri Buhl, who was found guilty on misdemeanor charges of harassment and breach of peace, was sentenced to 30 days in jail, one-year probation and a strict order not to interact with the victims' family, in Norwalk Superior Court today.

The New Canaan woman was accused of harassing her then-boyfriend's daughter by posting parts of the girl's private journals online in 2010. Buhl, 40, was acquitted of interfering with a police investigation.

Buhl appealed this decision, but has been denied by the Connecticut Supreme Court. In overturning [PDF] the district court's findings, the Supreme Court reaches some (not all that great) conclusions about social media platforms.

Buhl had posted these private journal entries to a publicly-accessible Facebook page under the pseudonym of "Tasha Moore." (According to prosecutors. This name isn't referenced anywhere in the court decision.) While posts to this page were accessible by anyone, the posting itself would have only normally have been seen by "friends" of the account. There's a lot of convolution to be sorted through, based on some severe disparities between the complainant's version of the events (which itself is somewhat contradictory) and Buhl's version, which begins with an entirely unrelated account. (Her version is here. She makes no mention of the "Tasha Moore" alias and -- I wish I were making this up -- compares her misdemeanor jailing to "an episode of Making a Murderer.")

What seems to be (relatively) clear is that the post originally reached only eight people, most likely because they were tagged. The teen whose journal pages were posted to Facebook originally could only reach it through a friend's Facebook account. Then she said she could reach it through her own.

Either way, the Supreme Court's finding is that the pages were published publicly, even though the number of people who had access to the posted pages was, at first, extremely limited. Here's Venkat Balasubramani's take on this part of the ruling:

The court never reconciles the court of appeals’ definition of public (generally available) with the fact that the material here was posted to a page that 8 people were invited to. And the court’s discussion of the Facebook privacy settings and the victim’s testimony were equivocal at best. The victim testified that she had to view the page in question “through her friend’s” Facebook account, but once there, she could “could see everything through [hers]”. Say What!? The existence of how-to materials instructing users on the use of Facebook’s privacy settings is a testament to the average consumer’s challenges in understanding them. Given the difficulty courts and litigants have had with Facebook’s privacy settings, it was surprising to see the court conclude that the accessibility of the page was a matter of sufficient common knowledge and experience that anyone could testify about it. At a minimum, the court could have said that the state failed to carry its burden on this element of the offense.

The larger problem with the decision is that it relies on another badly-written law put into place to deal with harassment.

Apart from finding that the state sufficiently proved the defendant posted the material in question, the court also finds the remaining elements of the offense met. Specifically, the court says there was sufficient evidence that the defendant posted material about the putative victim with the intent to inconvenience, annoy, or alarm the victim. The court looks to the posts and the surrounding context to find that the posts could easily have “vexed” or “provoked” the victim.

"Inconvenience" and "annoyance" are supremely low bars, ones that could be met by every single advertiser on the planet. So, it's unsurprising that a post sent to eight people -- in which the complainant was never specifically targeted -- could meet the stipulations of the statute.

The court also finds the delivery method used to put the journal pages in the hands of the parent whose daughter wrote them was harassing in and of itself.

In the present case, the trial court reasonably could have found that the circumstances surrounding the mailing, the contents of the mailing, and the defendant’s behavior thereafter demonstrate beyond a reasonable doubt her intent to harass, annoy, or alarm P or M through the mailing. The defendant could have brought the diary entries to P, her boyfriend of more than two years, directly, but she instead, as she admitted, sent them anonymously. The anonymous nature of the mailing served to increase P’s and M’s anxieties because they did not know who had intruded into M’s bedroom and copied her diary entries, how the mailer had obtained the entries, or who else might have access to them. P, in fact, testified that he felt ‘‘violated’’ that M’s diary entries were in ‘‘someone else’s hands.'"

Buhl's lawyer does make a good point about the decision, in a statement given to Eric Goldman and Venkat Balasubramani.

We must catch up with the technology when it comes to our consideration of analogs. We have to begin not by abandoning well know and traditional definitions of legal and logical concepts but by attempting to marry them consistently with their functional equivalents in cyberspace. Today I am not so sure that my Facebook status or the the idea of a Facebook invitation is so clearly analogous to real world instantiations of the same that my inferences upon them can be treated identically. For me, I still believe that if I specifically invite 6 people to my private yard party by written invitation noting the same, and an uninvited guest walks through an open gate to my yard, my private party doesn’t morph into a public affair. This conclusion is an intuitive one for most; we need to ensure that reliance upon legal analysis of social media platform evidence comes with the same intuitive flair.

So, there's that. On the other hand, the use of social media platforms -- if one isn't careful to lock down privacy settings -- is prone to allowing anyone to view posts never intended to be seen by them. That's the nature of the sharing beast. You might throw a private party in your backyard, but if your fence is too low, anyone can watch the proceedings and even interject their own comments on your choice of entertainment, food, etc. (to carry through with the metaphor).

Buhl still maintains her innocence. She claims she never made the postings under the "Tasha Moore" name. She also claims the only reason she's being nailed for this is because she hasn't divulged the actual source of the journal pages and Facebook post. Buhl claims she's protecting a source and that this lack of disclosure should be covered under the First Amendment. The court never addresses these arguments, however. It instead notes the lower court may not have addressed this issue sufficiently, but refuses to entertain the argument itself.

There's also an apparent lack of intent to annoy or harass. The journal page posts were never directed at the teen who had written them. Her discovery of it was secondhand. That's not to say posting of teens' private journals is a good thing -- especially when the poster has chosen to divulge personal info (full name, school attended) rather than redact it before publication.

So, while this site's experience with Teri Buhl is largely based on stupid legal threats, there's really no reason to celebrate this decision. There's some very flawed logic on display and it's made worse by a law that makes it a criminal act to "annoy" someone. The evidence tying Buhl to the postings appears to be mostly circumstantial and the court's finding makes some bad assumptions about how "public" should be defined in the age of social media.