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Facebook "Tagging" = Communication with the Tagged Person, for Purposes of Restraining Order
From Tuesday's decision of the Texas Court of Appeals (Amarillo) in Boes v. State, written by Justice Alex Yarbrough, and joined by Chief Justice Brian Quinn and Justice Larry Doss:
[Following an arrest of Boes for assaulting his then-wife, a court issued an emergency protective order that] prohibited Appellant from the following:
communicating directly with a family member of the family or household or with the person(s) protected under the Order in a threatening or harassing manner; communicating a threat through any person to a member of the family or household or to the person(s) protected under the Order;
communicating in any manner with a person protected under the Order or a member of the family or household of a person protected under the Order, accept through the party's attorney or a person appointed by the court, because the Court finds good cause exists; and
going to or within 500 feet of the residence of the victim.
The order was signed on February 5, 2020. In March 2020, Appellant posted on Facebook on at least three occasions and "tagged" [his wife]…. The crucial inquiry to resolve is whether those Facebook tags constitute "communications" in violation of the protective order. We hold under the facts presented herein they do….
"Communication" is not defined in any of the statutes applicable here. When a word in a statute is not defined, it is ordinarily given its plain meaning unless the statute clearly shows the word is used in some other sense. "Communication" is defined as "a process by which information is exchanged between individuals through a common system of symbols, signs, or behavior"; an "exchange of information"; "information communicated"; "information transmitted or conveyed"; a verbal or written message." …
"[T]agging" … create[es] a link to a particular Facebook friend who must be selected to receive notification of a tag…. The posts admitted into evidence demonstrate Appellant's transmission or conveyance of information or a written message sufficient to constitute "communications." Conflicts in the evidence, if any, were ultimately resolved against Appellant and we must defer to the jury's resolution of those conflicts in favor of the prosecution. We find the evidence was sufficient to support Appellant's conviction for violation of a protective order….
I have argued that criminal harassment laws and similar court orders may sometimes permissibly restrict unwanted speech to a person—"communications with a protected person," in the court's words—but not speech about a person (unless it's otherwise constitutionally unprotected, for instance is libel or a true threat of illegal conduct). This decision, as I read it, essentially treats tagging as speech to a person, since the same post could have just mentioned Boes's then-wife without tagging her, and the function of the tagging appears to have been precisely to make it more likely that Boes will receive notification of the message.
The State was represented by Daniel Sakaida.
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A hypothetical future case:
Suppose Facebook adds an update “subscribe to public pictures of yourself”. The information already exists in the computers, no tagging required, thanks to facial recognition. Does posting a picture of an ex with a restraining order violate the order? She might be subscribed and see the post.
Her voluntarily seeking out his public posts to look at is clearly different from his attempting to contact her.
In the physical world, the initiator of a physical no contact order can’t simply follow and barge in on the defendant and then try to claim that the defendant violated the order by being in closer proximity than the order permitted. Who initiated the proximity matters. Same with contact and electronic communications.
There is no need for court orders like this. If someone does not want a type of facebook messages, then she should be able to block those messages.
Does Facebook allow her to block her ex and after blocking not receive unwanted notifications of tagging?
If not, she needs to take it up with Facebook. It is not the job of the courts to redefine usages of popular apps.
I agree that’s the right take in this case. This asshole knew how tags work and was trying to see how close he could get, like kids arguing in the back seat, “I’m not touching you.”
Sounds appropriate. Tagging is the digital equivalent of tapping someone on the shoulder, showing them your phone and saying “Check this out, brah!”
The one possible difficulty here is that Facebook sometimes automatically tag someone who is simply mentioned, and the order didn’t prohibit simply mentioning her.
However, he could probably resolve that by defriending her.
I’m that Barry Boes. Feel free to contact me if you have questions.
There are many facts missing here. I’ll share some of them, which I will happily back up with evidence where there is evidence, and for most of it there is.
First, some will consider it to be important as to why the emergency protective order was issued. My ex-wife, who is a Pediatrician, became very angry when I asked for a divorce. She violently assaulted me and I attempted to carry her from the home.
The next morning, she talked to her divorce attorney (turns out she’d been planning a divorce for about ten years). She then went to the police and told them I’d assaulted her.
I told the police she’d assaulted me many times. I showed injuries she’d given me the evening before. I told them there was internal security camera footage in the home that showed her assaulting me.
I was nonetheless evicted from my home and accused of assault. The DA’s office refused to get the security camera evidence (hard to believe but I have the evidence). Eventually, the assault charges were dropped.
As to the tagging, I didn’t tag my wife. I autocompleted her name when using my phone and writing about her. Among other things, I wrote about her sleeping with her cousin. When you autocomplete a name, facebook can automatically generate a tag. Much the same as uploading a picture and FB using facial recognition to generate a tag. I didn’t know that FB did either of these things at the time. Some won’t believe that’s true.
Others have asked why I didn’t unfriend Sheila Boes. I planned to do just that, but my divorce attorney, Leslie Bollier, flat refused for me to do it. She told me [paraphrased, I don’t have a recording] “if you messenger Sheila, you’re violating the EPO. Don’t do it. No other action you can take on FB is communication”.
I said “what if I write a post and FB sends an email to Sheila and says ‘your husband just wrote about adultery’. I’m afraid FB might do something like that.
Leslie told me “that’s not communication. If you don’t messenger her, it’s not communication. Don’t unfriend her. Do what I say and stop asking questions”.
She never told me why, but other attorneys have told me that unfriending the mother of your children can be used against you in custody proceedings and it’s common for divorce attorneys to make this directive.
Also of interest in this case, I didn’t testify. My attorney, Sam Basset, told me not to testify because I wasn’t guilty, there was no evidence of my guilt, and I couldn’t be convicted without evidence.
One of the jurors found me guilty because, as she said on a survey the prosecutor’s office sent after the trial, “I watch Law and Order and people who don’t testify are always guilty on Law and Order”.
It’s required by jurors that, if they will consider someone guilty for not testifying, they disclose this when asked (she was asked at least 5 times). She didn’t disclose this, which violated my right to an impartial jury and *should* result in a mistrial.
However, the state argued that rule 603(b) disallows consideration of her admission. The court said that what the woman did was egregious, but stood behind 606(b), saying her admission was inadmissible.
I’ve included the text of 606.b below, which you can see starts with “during an inquiry into the validity of a verdict”. She disclosed this during a DA’s office juror survey, not an inquiry into the validity of a verdict.
In addition, there’s an exception in 606(b).2(b) that allows testimony about a juror being qualified to serve.
The court nonetheless held that the would do nothing about the fact that I wasn’t given my constitutional right to an unbiased jury.
Honestly, when I read all of this I find it very hard to believe it to be true. If I heard the story, I’d ask myself “what’s Barry not telling us”?
I wouldn’t believe it myself if it hadn’t happened to me.
Rule 606. Juror’s Competency as a Witness
(a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a
juror is called to testify, the court must give a party an opportunity to object outside the
jury’s presence.
(b) During an Inquiry into the Validity of a Verdict or Indictment.
(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a
verdict or indictment, a juror may not testify about any statement made or incident
that occurred during the jury’s deliberations; the effect of anything on that juror’s
or another juror’s vote; or any juror’s mental processes concerning the verdict or
indictment. The court may not receive a juror’s affidavit or evidence of a juror’s
statement on these matters.
(2) Exceptions. A juror may testify:
35
(A) about whether an outside influence was improperly brought to bear on any
juror; or
(B) to rebut a claim that the juror was not qualified to serve.