In Hawaii, a 22-year-old former hospital worker was recently sentenced to one year in jail, five years probation and 200 hours of community service on a felony charge of "unauthorized computer access to confidential records" (apparently under Haw. Rev. Stat. §708-892, Computer damage in the first degree) after she obtained a patient's records stating that he was HIV-positive and gave them to the patient's sister-in-law, who posted them on her MySpace page. The prosecutor had recommended a sentence of only 30 days, but Circuit Judge Randal Lee reportedly said during sentencing that "Young people in this society have to realize that the Internet is not something that can be taken advantage of. You can't use the Internet to do unlawful conduct."
Although the patient in the Hawaii case his since died, a lawyer for his estate said that he planned to file a civil lawsuit against the former hospital worker who may face liability for the publication of private facts. (Another civil suit stemming from posting of personal medical information is Mason v. Grey, detailed in the Legal Threats database.)
But it isn't just the online posting of medical information that can get you in hot water. In a DWI case in Pennsylvania, a judge imposed a 33-day sentence after prosecutors discovered that the defendant had sent Twitter messages on the day of his trial disparaging the police who testified. One of his Tweets, for example, said, "When all else fails, try ignorance. I watched four cops lie on a witness stand today and I didn’t say a word.” At sentencing, the prosecutor argued that the messages showed the defendant's disregard for authority.
In both cases, it is clear that the courts meted out harsher criminal penalties for posting material online than they might have had the Internet not been a factor. This may be the result of prosecutors having to "stretch" in order to find a statute that is applicable, due to criminal statutes that have not kept up with technology. In the Hawaii case, for instance, note that the charges stemmed from accessing the information, not posting it -- although the judge clearly took the posting into account during sentencing.
Judges generally have wide discretion in sentencing, including what factors to consider when imposing sentences. Moreover, judges often take into account facts what weren't decided by the jury. (Federal judges' discretion in sentencing was restored by a divided Supreme Court in United States v. Booker, 543 U.S. 200 (2005), which held that federal sentencing guidelines are advisory only.) As Justice Stevens stated in his plurality opinion in Booker:
[W]hen a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.543 U.S. at 233.
So it seems that the Hawaii and Pennsylvania cases may be the harbinger of more cases to come, in which judges impose harsher sentences in criminal cases because the defendant's criminal activity is magnified by postings online.
