Nov 30, 2012

Addressing the Issues of Cyberharassment

In general, criminal activity has followed the global rise in personal usage of the internet; as more of our information becomes digitized, the risks of theft and fraud grow proportionately. With the rise of virtual social networking a new issue has evolved: personal attacks involving intimidation and harassment through the various digital networks that are now a part of our lives.

Prior to the advent of public internet access various pieces of legislation had been enacted on both State and Federal levels to deal with harassment. Although freedom of speech is protected by the First Amendment, a spoken or written "true threat" is criminalized due to the intent to harm or intimidate. The US Supreme Court definition of "true threat" is "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group". Unfortunately the Court has not clearly defined a test for determining what types of speech constitute a true threat, and as a result the lower courts have been left to adopt various tests to determine whether speech constitutes a true threat.

Social Networking in the Digital Age 

Beginning in the late 1980s Bulletin Board Systems (BBS) began to gain popularity on the then fledgling internet as a text-based means of social interaction. Because the majority of users were limited to telephone modems connecting to local hubs, BBS tended to be geographically localized and topic specific, and therefore relatively easy to moderate. Serious issues involving harassment seldom arose as individual users were readily identifiable. However, by the 1990's the advent of extended services such as CompuServe and AOL not only provided instant e-mail communication to a large segment of the public, but also offered a plethora of open forums in which strangers were able to interact under relative anonymity. Instances of harassment and intimidation by individual users began to escalate, and because of the sheer volume of traffic these incidents became increasingly difficult to regulate. As new technology was introduced users were provided with options such as live chat, video conferencing and instant messaging which are virtually unregulated and often lack sufficient security to ensure privacy.

By the early 21st century true digital "social networking" as we now know it had come into use with the introduction of portals such as MySpace which were specifically designed to encourage users to share personal information. Backed by large scale media campaigns these systems have now attracted millions of users who often fail to realize their vulnerabilities and lack of privacy. Combined with advances in internet search capabilities which allow access to large amounts of information on virtually anyone who is active online, this has led to an unprecedented increase in online harassment and predation.

Cyberharassment, Cyberstalking and Cyber-Bullying 

Three terms are generally accepted in addressing intimidation and harassment over digital networks:

Cyberharassment itself is defined as speech or text that directs obscenities and /or derogatory comments at specific individuals, focusing for example on gender, race, religion, nationality or sexual orientation, however on a federal level it is usually used in a context specifically dealing with obscenities of a sexual nature. The definition of "harassment" must meet the criterion that a reasonable person, in possession of the same information, would regard it as sufficient to cause another reasonable person distress.
Cyberharassment differs from cyberstalking in that it may generally be defined as not involving a credible threat. Some states approach cyberharassment by including language addressing electronic communications in general harassment statutes, while others have created stand-alone statutes. On the Federal level, the Interstate Communications Act (18 U.S.C. § 875(c)) criminalizes the making of threats via Internet.

Cyberstalking is the use of electronic means to stalk or harass an individual or a group of individuals and often (but not exclusively) applies to cases in which the victim is an adult. It may include defamation, monitoring, threats or gathering information that may be used to harass. Cyberstalking is separate from spatial or offline stalking, however the two are often combined and both are criminal offenses. Cyberstalking is a criminal offense that comes into play under state anti-stalking laws, slander laws, and harassment laws. The current US Federal Anti-Cyber-Stalking law is found at 47 USC sec. 223. A majority of states also have laws that explicitly include electronic forms of communication within spatial stalking or harassment laws. In addition, most law enforcement agencies have cyber-crime units and often Internet stalking is treated with more seriousness than reports of physical stalking. Cyberstalking may be considered the most dangerous of the three types of Internet harassment, based on a posing credible threat of harm. Sanctions range from misdemeanors to felonies.  

Cyberbullying is the use of the Internet and related technologies to harm other people, in a deliberate, repeated, and hostile manner and often (but not exclusively) applies to cases in which the victim is a juvenile. Cyberbullying has been defined by The National Crime Prevention Council: “When the Internet, cell phones or other devices are used to send or post text or images intended to hurt or embarrass another person." There are laws that only address online harassment of children or focus on child predators as well as laws that protect adult cyberstalking victims, or victims of any age: currently, there are more than 45 cyberstalking (and related) laws on the books.
School safety is also an increasing focus of state legislative action: school bullying and harassment policies are being supplemented to provide students protection from cyberbullying.

Federal Cyberstalking Laws 

Federal law provides a number of important tools to combat cyberstalking. As previously mentioned, the Interstate Communications Act (18 U.S.C. § 875(c)) forbids the transmission of "any communication in interstate or foreign commerce containing a threat to injure the person of another" and this has been determined to include threats via the telephone or Internet. Violations are punishable by up to five years in prison and a fine of up to $250,000. However, 18 U.S.C. 875 applies only to communications of actual threats: it would not apply in a situation intended only to harass or annoy another (absent some threat). Also, it is not clear that it would apply to situations involving the use of public forums such as chat rooms to encourage others to harass or annoy another person.

Certain forms of cyberstalking may also be prosecuted under the Communications Decency Act (47 U.S.C. 223), which includes a provision making it a federal crime to use a telephone or telecommunications device to annoy, abuse, harass, or threaten any person at the called number. Although this statute is broader than 18 U.S.C. 875 in that it covers both threats and harassment, Section 223 applies only to direct communications between the perpetrator and the victim and also would not apply to a situation involving messages in public forums. Moreover Section 223 is only a misdemeanor and punishable by not more than two years in prison.

The Interstate Stalking Act (18 U.S.C. 2261A) makes it a crime for any person to travel across state lines with the intent to injure or harass another person and, in the course thereof, places that person or a member of that person's family in a reasonable fear of death or serious bodily injury. Although a number of serious stalking cases have been prosecuted under Section 2261A, the requirement that the stalker physically travel across state lines makes it largely inapplicable to cyberstalking cases.

Finally, the Protection of Children from Sexual Predators Act (18 U.S.C. 2425) makes it a federal crime to use any means of interstate or foreign commerce (such as the Internet) to knowingly communicate with any person with intent to solicit or entice a child into unlawful sexual activity. While this new statute provides important protections for children, it does not cover harassing phone calls to minors absent a showing of intent to entice or solicit the child for illicit sexual purposes.

Current statutes address some forms of cyberstalking, but there are major gaps in the federal law. The Department of Justice has expressed misgivings about the adequacy of federal law to respond to cyberstalking, as the law generally deals only with direct communication between the perpetrator and the victim; when the perpetrator persuades third parties to be become participants and vehicles of the harassment the law is inadequate. In addition, while a federal stalking law has passed, it involves instances of interstate travel; the perpetrator must travel across state lines making the law frequently inapplicable.

Cyberbullying and State Legislation 

Current research defines cyberbullying as "an aggressive, intentional act or behavior that is carried out by a group or an individual repeatedly and over time against a victim who cannot easily defend him or herself". Though the use of sexual remarks and threats are sometimes present in cyberbullying, it is not the same as sexual harassment and does not necessarily involve sexual predators: it also typically occurs among peers. In 2011 the National Crime Prevention Council reported that cyber-bullying is a problem that affects almost half of all American teens. Several high profile cases of teen suicide have been directly linked to cyberbullying, including the suicide of Ryan Halligan and the suicide of Megan Meier, the latter of which resulted in United States v. Lori Drew which charged Drew of violations of the Computer Fraud and Abuse Act (CFAA) (18 U.S.C. § 1030) over the alleged "cyberbullying".

During the summer of 2006, Missouri residents Lori Drew, her daughter, and Drew's employee, Ashley Grills, allegedly decided to create a MySpace account for a non-existent 16-year-old boy in order to discover whether Meier was spreading false statements about Drew's daughter. Drew allegedly used the MySpace account to contact Meier, initiate a virtual relationship, and finally to send negative messages which were subsequently multiplied by other MySpace users, culminating in Meier's depression and suicide.
Although state prosecutors declined to press charges due to lack of evidence, the U.S. Attorney for the Central District of California undertook prosecution of federal charges in connection with the case and Drew was indicted by the Grand Jury on four counts. The first count alleged a conspiracy arising out of a charged violation of 18 U.S.C. § 371, and the others alleged that Drew violated the CFAA by accessing MySpace servers to obtain information regarding Meier in breach of the MySpace Terms of Service.

The case was heard by a jury which only found Drew guilty of a misdemeanor violation of the CFAA. U.S. District Judge George H. Wu formally granted Drew's motion for acquittal, overturning the jury's guilty verdict. In his opinion, Judge Wu stated that allowing a violation of a website's Terms of Service to constitute an intentional access of a computer without authorization or exceeding authorization would "...result in transforming section 1030(a)(2)(C) into an overwhelmingly overbroad enactment that would convert a multitude of otherwise innocent Internet users into misdemeanant criminals" and granted Drew's motion for acquittal.

Following United States v. Lori Drew, Missouri updated its laws to include electronic and internet harassment; many other states (as well as many counties and cities) rapidly followed suit, although the legislation varies widely in scope. Currently 38 states have enacted "cyberstalking" or "cyberharassment" laws, or have laws that explicitly include electronic forms of communication within more traditional stalking or harassment laws: however, most stalking and cyberstalking statutes require proof of a “credible threat” of violence which might not be present in instances of peer related bullying. Similar to speech and harassment laws at the federal level, individual states continue to wrestle with defining the problem and what legal actions to take when a violation occurs. Nonetheless, 34 states have enacted explicit legislation dealing with "cyberbullying". Some specifically proscribe cyberbullying as a prohibited act within the operative provision of the law, others target the broader act of bullying and include cyberbullying within the statutory definition.

Current cyberbullying laws also primarily focus on the public school setting by requiring school boards to set policies that prohibit cyberbullying. As the safety of schools is increasingly becoming a focus of state legislative action, one of the major areas of contention seems to be whether school districts can interfere in the behavior or speech of students that occurs away from campus. Many cases dealing with freedom of speech on and off school grounds have worked their way up to the United States Supreme Court.

However, states are realizing that speech or behavior committed off?campus can result in a clear disruption of the school environment and public schools equipped with trained guidance counselors may be better suited than the juvenile-justice system to address cyberbullying among youth.

Lacking clear guidance from the Supreme Court, lower federal and state courts have disagreed whether online speech created off-campus is protected. If courts determine online expression created off-campus is beyond the reach of public schools, some current and proposed cyberbullying laws may be rendered unconstitutional. Because most cyberbullying occurs off-campus, limiting cyberbullying laws to speech created on public-school campuses would seriously undermine their effectiveness in addressing the problem. Until the Supreme Court clarifies the authority of schools over online speech, legislators and educators must respond to cyberbullying in a way that avoids restricting students’ free speech rights.

Prosecuting Computer Crimes: Computer Crime and Intellectual Property Section Criminal Division, Office of Legal Education Executive Office for United States Attorneys
18 USC § 1030 - Fraud and related activity in connection with computers
Cyberbullying Enacted Legislation: 2006-2010 Legislation by State, NCSL
The History of Social Networking; September 6, 2012 by Gordon Goble (
The Protection of Children from Sexual Predators Act of 1998 (P.L. 105-314)