I had filed a pretrial writ of habeas corpus challenging Texas’s Online Impersonation statute on First Amendment grounds. The prosecutor agreed with me off the record, dismissed the case, and instead filed a (less serious) Fraudulent Use of Identifying Information charge. Also, the Harris County DA’s Office flagged the Online Impersonation statute in its charge bank as “possibly unconstitutional.”
What is wrong with these people? Doesn’t Devon Anderson have an obligation to defend Texas’s penal statutes against constitutional attacks? Do I have to notify the Attorney General to get some opposition?
It looks as though I’ll have to go to some other county to get an appealable opinion upholding or striking the Online Impersonation statute.
But the prosecutor’s refiling the charge as Fraudulent Use of Identifying Information had me looking at that statute with a critical First Amendment eye:
A person commits an offense if the person … uses identifying information of another person without the other person’s consent and with intent to harm … another.
“Use” is not defined.
“Identifying information” means information that alone or in conjunction with other information identifies an individual, including an individual’s:
(A) name, social security number, date of birth, and government-issued identification number;
(B) unique biometric data, including the individual’s fingerprint, voice print, and retina or iris image;
(C) unique electronic identification number, address, and routing code, financial institution account number; and
(D) telecommunication identifying information or access device.
“Harm” is defined as “anything reasonably regarded as loss, disadvantage, or injury.”
So if I use—by writing—a person’s identifying information—his name—without his consent with the intent to harm—by embarrassing—him, I commit a felony in Texas.
Hmm. That can’t possibly be right.
The first writ of habeas corpus will be filed tomorrow in Harris County, followed next week by one in Fort Bend County. I’m also looking for online impersonation cases in other counties to file writs on. Some prosecutor somewhere has got to take the bait.