Is Posting a Photo of an Undercover Police Officer a Crime?

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Facebook, privacy, law enforcement, social networksMelissa Walthall, of Mesquite, Texas, was given a photo of the undercover police officer who had helped to convict a friend of hers. She did what many of us would do: She posted it to Facebook, adding the ill-considered comment, “Anyone knew this –?”

Walthall’s friend’s brother had found the photo on Facebook, according to the Dallas Morning News.

Both have been charged with “retaliation.”

SocialTimes spoke to Hanni M. Fakhoury, a staff attorney at the Electronic Frontier Foundation to get some context.

Fakhoury had never heard of a police officer being outed over social media, but said it seems increasingly likely that such cases will become commonplace.

“I don’t want to go all hyperbolic, but it’s only going to be a matter of time before it gets done again and again. I’m ready for the first website that’s undercovercops.com.”

Do online outings constitute a crime? The police do have a legitimate interest in keeping the identify of their undercover officers a secret, Fakhoury said, but they still have to protect free speech.

“There aren’t necessarily neat and clean answers. Violentacrez is another example of this, there has to be a straddling” of privacy and free speech protections.

In this case, Fakhoury thought the police were stretching the law to allege that posting the photo constituted a crime. Retaliation occurs, according to the Texas Penal Code, when a person “threatens to harm another by an unlawful act.” Walthall’s comment may constitute a threat, but there doesn’t seem to be an unlawful act attached.

Posting the photo could possibly be considered obstruction of justice, Fakhoury ventured.

But the courts have ruled against private citizens when the tables were turned, holding that when people post information to Facebook, they assume the risk that it will subsequently be used in ways they didn’t intend.

Law enforcement officers “can’t pretend that they live in a vacuum. If they’re going to act undercover, of course they assume the risk that if people later learn that the guy was a narc, they are going to go out of their way to express their frustration and anger. That’s human nature.”

But precisely because Walthall’s case could open the floodgates of similar behavior, the authorities are likely to want to crack down hard on her, Fakhoury said.

“I’m sure they’ll cook up some kind of legal theory or they’ll change the law. There’s an instinct to strike hard the fist time it happens to try to warn people, don’t do this,” he said.

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