We live in a surveillance world. The technology exists for everyone to watch everyone all the time. Is this what we want? This question and the risks associated with this surveillance mentality are not new. It has been portrayed in film and media for decades: The Truman Show (1998), EdTV (1999), Enemy of the State (Will Smith, 1998), and of course, 1984 by George Orwell (1949), to name a few. So why the heightened interest and concern now? One look at recent news headlines offers the answer – NSA, Google Glass, Facebook Messenger. These incidents do not only raise the question of who’s watching us, but also what are they doing with the information they collect on us? How can it and how is it used against us? How can the law help us protect ourselves?
Cyber-harassment usually pertains to threatening or harassing email messages, instant messages, or to blog entries or websites dedicated solely to tormenting an individual. The messages are usually repetitive and may or may not contain an immediate threat.
Under federal law, cyber harassment can be prosecuted under 47 U.S. Code § 223, Communications Decency Act (CDA) that was recently rephrased to include any telecommunications device . The CDA prohibits certain acts that generally use communication devices to create and transmit obscene material or child pornography or to abuse, threaten, or harass another person.
States have generally two approaches in regards to legislating cyber-harassment. They either include language addressing electronic communications in general harassment statutes or they create stand-alone cyber-harassment statutes .
Another definition for cyber-harassment connects this to a violation of anti-harassment/anti-discrimination policies (like Civil Rights) via an email, online post, Tweet, or other electronic communication. For example, many social media policies have language such as:
Employees are reminded that Company’s anti-harassment and anti-discrimination policies apply online just as they apply to face-to-face communications with co-workers, and that posts that would constitute harassment or discrimination of a co-worker if said in person will still be considered harassment or discrimination if posted online. It is important to recognize that such posts could contribute to a hostile work environment if the posts are based on race, gender, disability, religion or any other status protected by law or Company policy.
Cyber-stalking is the use of the Internet, email or other electronic communications to stalk, and generally refers to a pattern of threatening or malicious behaviors. It is based on a credible threat of harm and sanctions range from misdemeanors to felonies.
On the federal side 18 U.S.C. § 875(c) makes it a federal crime, punishable by up to five years in prison and $250,000 fine, to transmit any communication in interstate or foreign commerce containing a threat to injure the person of another.
Section 875(c) prohibits the actual transmission of a threat, which is defined “objectively” as a statement, which a reasonable person would understand as threatening bodily injury. These are also described as “true threats” which are not protected by the First Amendment. In Watts v. United States, 394 U.S. 705 (1969) it was noted that such protected speech includes “political hyperbole” or “vehement,” “caustic,” or “unpleasantly sharp attacks” that fall short of true threats. Watts also laid out four factors that help determine whether the speech constitutes a true threat – in other words, the speech alone is not enough – it must be reviewed via its context:
- The reaction of the person who received the threat;
- The history and relationship between the defendant and the victim;
- Whether the threat was communicated directly to the victim; and
- Whether the threat was conditional.
Not all states however, have gone so far as to make this “true threat” as a requirement. Our Georgia Code, 16-5-90, which was recently revised in 2014, states that:
(a)(1) A person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.
The term “contact” shall mean any communication including without being limited to communication in person, by telephone, by mail, by broadcast, by computer, by computer network, or by any other electronic device; and the place or places that contact by telephone, mail, broadcast, computer, computer network, or any other electronic device is deemed to occur shall be the place or places where such communication is received.
This debate of how serious a threat needs to be, especially in the online world, is being played out in U.S. v. Elonis, argued at the US Supreme Court in December of 2014. A decision is expected in June of 2015 . The case concerns the conviction of Anthony Elonis in the Eastern District of Pennsylvania for violating the federal cyber-stalking law for threats he posted on his Facebook page. Elonis claimed his posts on Facebook where “rap lyrics,” did not constitute any real threat, and were protected by First Amendment.
A few examples of Elonis’ lyrics are below:
“Fold up your protective order and put in your pocket.
Is it thick enough to stop a bullet?
And if worse comes to worse
I’ve got enough explosives
to take care of the State Police and the Sheriff’s Department.
That’s it, I’ve had about enough
I’m checking out and making a name for myself
Enough elementary schools in a ten-mile radius
to initiate the most heinous school shooting ever imagined
And hell hath no fury like a crazy man in a Kindergarten class
The only question is . . . which one? “
At trial evidence of context of when postings were made showed:
- Elonis had recently lost his job with a local amusement park;
- Elonis’ wife had left him;
- Elonis’s wife had obtained a protection from abuse order for herself and their two children;
- Elonis was visited by the FBI; and
- Elonis did not restrict who had access to his Facebook account. His “friends” included his former co-workers, former wife and the FBI.
It will be interesting to get SCOTUS’s decision as to whether these factors were enough to defeat the first amendment defense.
Most people (and state laws) consider this in regards to minors and/or students. For example, Georgia’s SB250 (enacted in 2010):
relates to prohibited acts of bullying at public schools; relates to unlawful disruption of the operation of public schools, at bus stops, on public school buses or by use of data or software access through a computer network or electronic technology of a local school system; provides that a mental state of knowledge, intention, or recklessness shall be an element; includes physical acts; provides that a student can be reassigned to another school for the purpose of separating such student from the victim .
However there is a concept gaining ground called “workplace cyber-bullying.” Research has provided statistics that make one understand that bullying has left the playground and entered the office:
- 35% of adults in the US report being bullied at work – approximately 54 million workers (Workplace Bullying Institute)
- Almost one in ten people had experienced a manager using information from a social media site against them or a colleague (AVVG Technologies study January 2013, 4000 adults in 10 countries)
- Cnet.com research study – May 2013 – up to 80% of surveyed subjects claimed to have experienced some sort of cyber bullying at work
However, state laws have usually limited anti-bullying statutes to children and students leaving the question as to whether certain behavior is Cyber-bullying or Cyber-Harassment?  For example, how would you characterize the following?
- Malicious or threatening emails, text messages, and tweets.
- Electronic communications that contain jokes about ethnicity, religion, sexual orientation, or any other topic that would make an individual uncomfortable.
- Public shaming via a mass email.
- Sharing embarrassing, offensive, or manipulated images or videos of an individual.
- Spreading lies and gossip.
An example of the difficulty in distinguishing one form the other is the recent “bullying” of Zoe Quinn, software developer of the game “Depression Quest,” a text-based game partially based on her own experience with depression. This led to what was called by the popular media “#Gamergate” in August 2014. Other software developers and gamers targeted Quinn with online death threats and harassing posts due to their opinion that her game was not a “true game” and should not have received so much attention. The posts were particularly violent. For example: “Next time she shows up at a conference we … give her a crippling injury that’s never going to fully heal … a good solid injury to the knees. I’d say a brain damage, but we don’t want to make it so she ends up too retarded to fear us. ”
The peak of the activity occurred in August 2014 when Quinn was “doxed,” meaning her personal information – home address, phone number, financial information, etc. – was made public on the Internet. At this point Quinn left her home and went into hiding fearing for her life. No arrests have been made, nor anyone prosecuted. But this case did bring up that online activity can indeed pose a real threat offline.
Quinn’s case also provides an example of a “group cyber-mob” where many of the participants do not know the victim or have any connection with the underlying reason for the bullying, they just join in. Another question brought up by this case is can it be categorized as a “hate crime” because Quinn is female?
According to the US Department of Justice 850,000 American adults – mostly women – are targets of cyber-stalking each year . Most of these incidents also fall within the category of Intimate Partner Cyber Violence (IPV). IPV encompasses domestic violence, sexual violence, and stalking that targets a current or former spouse, boyfriend, girlfriend, or significant other via the use of technology, including the Internet, social media, email, texting, etc. Due to the facts that current criminal laws do not sufficiently address these kinds of activity, many victims rely on tort or civil claims to seek redress. Some examples include: Defamation, Intentional Infliction of Emotional Distress, Harassment, Public Disclosure of Private Fact, and even
Copyright Violation when it comes to the posting of photographs of victims . The problem with some of these remedies is the awkward position they put the victim in, in order for her to file the complaint (for example, with the copyright violation, the victim would have to register the nude photo of herself before pursuing a lawsuit against the perpetrator).
California has been at the forefront of protecting victims with a recently passed “Revenge Porn” law (SB 255) . California is one of 13 states that have enacted cyber-exploitation laws. There were many who were concerned that California’s law would be too broad. Recently California had its first conviction under the law in CA v Iniquez, where Noe Iniquez was convicted of the charge of distributing “revenge porn” via the Internet and sentenced to one year in jail. Iniquez posted a topless photograph of his ex-girlfriend on her employer’s Facebook page and sent harassing email to her. This case emphasized that CA’s Revenge Porn law requires proof beyond a reasonable doubt that:
- The accused photographed or recorded an image;
- Of one or more intimate body parts;
- Of an identifiable person;
- Under circumstances where the parties agree or understand that the image is to remain private;
- And the accused subsequently distributed the image;
- With the intent to cause serious emotional distress; and
- The depicted person did suffer serious emotional distress .
As briefly outlined in this article the possibilities of online stalking and harassment is expanding due to new technologies and new uses of such technology. Some of the laws currently in place to address the harm done to victims are playing catch-up while other new laws are being vetted through the justice system. Some laws do not go far enough and address only one limited possibility. But that is an over-all issue with the Internet and technology that is in constant evolution. We do not know what new ideas people can devise and so we need to rely on a legal system that is reactive instead of pro-active. In the meantime, here are some tips to share if you have a client who is a victim:
- Have them recognize what is happening.
- Do not respond to that person; but be able to identify the person (anonymous postings are difficult to prosecute).
- Document by making a copy of the message, photo, or video (including URLs).
- Contact the Internet Service Provider (ISP).
- File a report with local police department (Internet Crimes Division).
- File a complaint with the Internet Crime Complaint Center (IC3); http://www.ic3.gov .
Citron, Danielle, Hate Crimes in Cyberspace, 2014
 Cyber-bullying State Laws: www.ncsl.org/research/education/cyberbullying.aspx