Contacting a Person’s Facebook Friends Isn’t Stalking–People v. Welte
By Eric Goldman
People v. Welte, 2011 WL 1331900 (N.Y. Just. Ct. April 7, 2011).
The defendant was subject to the following order protecting the mother of his two children: “Respondent is to have no contact with Petitioner including personal or through third person.” The defendant allegedly accessed the mother’s Facebook friends list and sent messages to her friends accusing the mom of bad acts. The prosecution’s theory appears to be that the defendant anticipated that these friends would pass along defendant’s accusations to the mom, so the defendant was accomplishing indirectly what he couldn’t do directly.
The court states the “questions presented”:
Does communication to a person’s acquaintances listed as friends on a facebook account violate a no contact order of protection? Does communication to a person’s acquaintances listed as friends on a facebook account onstitute stalking in the fourth degree?
The court says no to both questions. With respect to the no-contact restriction, the prior order didn’t expressly restrict the defendant’s contact to third parties. With respect to the no-stalking restriction, the prosecution didn’t show the defendant had an illegitimate purpose, engaged in a bad course of conduct, intended to harm the mom, or was clearly informed not to have such contact.
As a result, the court dismissed the prosecutor’s complaint. Even so, the defendant should probably consider himself lucky here. Many courts would be less sympathetic to the defense, especially where an existing no-contact order is on the books. Plus, the defendant might have violated Facebook’s user agreement, creating the possibility of a Lori Drew-style server misuse prosecution by an activist prosecutor. Meanwhile, this is yet another reminder that everyone should keep their Facebook social graph private, especially people who have obtained a no-contact protection order.