Today, we continue with House Bill 3024, which created a civil liability (translation – you can get sued) for those who engage in online impersonation, a practice known as “catfishing.” HB 3024 provides that someone may successfully be sued for the damages that are caused by such behavior.
This year, Governor Fallin signed 394 pieces of legislation. I was the primary Senate author of 11 of those bills. Over 11 days, I am telling the story of each bill – where it came from, how it progressed through the Legislature, and what it means to the people of Oklahoma. This is in keeping with my longstanding support of transparency, and hopefully you’ll find this exercise insightful.
In Episode 9, I related the story of SB 1257, my bill that criminalized the practice of “revenge porn.” That Senate bill ended up being authored (or “carried”, in the legislative lingo) by Rep John Paul Jordan. He was also the author of HB 3024, and since it bore some passing similarities to SB 1257, in that both bills involved forms of Internet abuse, he asked if I would be his Senate author for HB 3024. I was happy to do it.
This discussion of SB 1257 and HB 3024 is a good time to note the difference between criminal liability and civil liability. SB 1257 criminalized revenge porn, meaning that if one was convicted, they would face prison and fines. HB 3024 created civil liability for catfishing, meaning that you could be sued for damages in a court action between two private parties, but you wouldn’t face prison or fines based on this statute alone.
As I’ve discussed in previous episodes of this series, when you are the author of a bill in its second chamber, your influence over it can vary widely, but you never have influence at the outset. And that was the case here. Without need of my assistance, Rep. Jordan passed his bill easily, first through committee and then through the full House, 86-7 on February 23rd.
Then HB 3024 came to me. Immediately I was approached by Google’s lobbyist about adding a clause that protected Internet providers from liability. This made sense, and it was a clause we had included in the revenge porn bill. Why they had not taken this issue to Rep. Jordan was probably just a reflection of just how rushed everything is at the Capitol. Lobbyists are often scrambling to keep up with the whirlwind of bills. I often wonder what hope the people of Oklahoma have of following the process if the people who are paid to do it every day can barely keep up.
I also had someone Tweet at me that the bill seemed intended to target satire, which was not the case. But in reading it, I was concerned that it didn’t seem to adequately protect parody and satire.
It also bothered me that the statutory language used the word “catfishing” without defining it. My concern was that the word is a colloquialism whose relevance may fade. As comparison, though I often call SB 1257 the “revenge porn bill”, I never once used that phrase in its actual language.
So, I worked to draft a committee substitute to address these issues. I’ve discussed in previous episodes the fact that sometimes the changes are so many that it’s best to just do a wholesale substitute (or “sub”, in the lingo) rather than amendments. In the case of HB 3024 (in contrast to the procrastinating I discussed in Episode 4), I was able to find the time to draft this sub in time for committee consideration.
I still needed to talk to Rep. Jordan about this, however. Original authors aren’t always ecstatic about the second author messing with their bill, and any amendment would force him to present it again in the House. Sometimes, original authors are so scared of presenting their bill a second time that they will beg the author in the other chamber to keep it a “clean bill” without amendments.
This bill was really Rep. Jordan’s vision, it had no lobbyists pushing it (as I’ve said in previous episodes, that is something of a rarity), and we were in communication on this and SB 1257 (as I’ve also said in previous episodes, House and Senate authors are not always talking). So, I ran the changes past him. He knew he needed to add the language protecting Internet providers, so he was under no illusion that he was not going to see the bill again in some amended form. That made the rest of the conversation easier. He also agreed to the protection for satire. However, he didn’t want to lose “catfishing” completely, so I agreed to keep it in the title of the bill but take it out of the language.
With my committee sub ready, it was time to present it. The bill was assigned to the Judiciary Committee, and the chairman was inclined to grant it a hearing. To his credit, Rep, Jordan was so passionate about this bill he had approached the Senate Judiciary Chair well in advance of the session about his bill.
In committee, one Senator who is a practicing attorney was very concerned about the damages paragraph. He just didn’t think it was written the way it should have been. I now had a bill I liked, and the issue wasn’t one of substance, so I took out my pen and offered to make the amendments he desired on the spot. This is actually not the usual custom. Committee meetings usually move fast and amending on the fly, though possible, is rarely done. However, I wanted to not put off till tomorrow what I could do today, so I pushed the Senator a bit to work with me in that moment. He replied that he would prefer to do it later, and asked if I would simply strike the title of the bill to show that I was willing to work on the bill in good faith. Knowing that this meant the future drafting of a floor amendment and a restore title amendment (for which I would need the committee chairman’s permission), I responded with a dramatic “Fiiiiine.” The bill passed unanimously, with title struck.
If I look now at my text history with Rep. Jordan over the rest of April, it’s a series of exchanges illustrating our efforts to get the two of us and the Senator in question together to receive his suggestions for changes. I simply cannot exaggerate how busy it is during the legislative session. There is nothing like it. I frequently find myself going hours on end without the ability to even use the restroom. As it turned out, the best we could do was to get Rep. Jordan and I together in one room while the Senator spoke to us on speaker phone.
We made his changes and in this case they were limited to just one section of the bill, so I filed an amendment, not a floor substitute. I presented the bill on April 19th, adopted the amendment, restored title, and it passed 44-0. On the same day, the revenge porn bill passed the House. Rep. Jordan passed HB 3024 again through the House on May 5th, 74-3. It was signed by the Governor on May 11th. It takes effect November 1st, as many bills do.
HB 3024 is a good example of updating our statutes to keep up with modern life. It empowers citizens to recover what they lose when people commit fraud online. It will be interesting to see how much use people make of this new power.
Tomorrow, we’ll continue with the final episode of #11BillsIn11Days.