Saturday, July 05, 2008

In Which We Explore the Federal Laws that Apply to Cyberstalking

Tragedies frequently result in flurries of legal activity.

Last years witnessed the Myspace tragedy in which a 13 year old girl committed suicide.

Unfortunately stalking laws have been clumsy tools that are difficult if not impossible for law enforcement officials to wield. Where existing laws respond poorly to tragedies, the option behind Door Number One is to enact a new law, and the option behind Door Number Two is to argue for a reinterpretation of current law that would somehow miraculously shoehorn the tragedy into the law. Unlike game shows, legal contestants can pick both doors – which is what happened in this case.

DOOR ONE: On June 30th, Missouri Governor Matt Blunt signed a new anti-cyberstalking law which revised the state stalking law so as to cover the Internet.

DOOR TWO: Federal prosecutors have brought charges against the alleged Myspace stalker, arguing that as the alleged stalker used a fake name, the alleged stalker therefore violated MySpace’s terms of use. Since the Terms of use were violated, the alleged stalker’s use of the service was thus unauthorized. Since the use was unauthorized, the use therefore violated the Computer Fraud and Abuse Act.

To quote John Stewart, “Really?!??! Geeze, I mean, I can not tell you how many Internet accounts I have using pseudonyms. I don’t really want people to know that I lead a double life as a hockey player. Other groups such as the Center for Democracy and Technology have called this attempted reinterpretation of the Computer Fraud and Abuse Act “absurd.”

But this isn’t about Door One or Door Two. This is about DOOR THREE (are any of you old enuf to remember Let’s Make a Deal?): What existing Federal Laws deal directly with Cyberstalking. There are two.

First, the fun one: Pursuant to the Communications Decency Act, as amended by the Violence Against Women and Department of Justice Reauthorization Act of 2005, it is illegal to annoy someone if you don’t tell them who you are (if however you tell them who you are, well, then, that’s okay).

Since this was a new law in 2005, it was of course in response to a tragedy: Rep. Jim McDermott explains that he sought this prohibition in response to a Seattle Woman who was stalked online. “When she first went to authorities for help it was determined that no 20th century law applied to this 21st century crime.” "Every woman has the right to be safe," he continued.

Specifically, this law as amended states:

Whoever-- (1) in interstate or foreign communications--

. . . . .

(C) makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications;

. . . .

shall be fined under Title 18, or imprisoned not more than two years, or both.

The McDermott amendment simply redefined “telecommunications device” to now include the Internet. There were some constitutional First Amendment challenges to this – arguing that being annoying is a god given right – but I could not track down the status of that challenge. It would indeed seem to pose some First Amendment difficulties.

Second, rather on the nose would be the Instate Stalking law, 18 USC 2261A. Of course the very specific limitation with this one is that the perp has to cross state lines. It says

Whoever—

(1) travels in interstate or foreign commerce or within the special maritime and territorial jurisdiction of the United States, or enters or leaves Indian country, with the intent to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate another person, and in the course of, or as a result of, such travel places that person in reasonable fear of the death of, or serious bodily injury to, or causes substantial emotional distress to that person, a member of the immediate family (as defined in section 115) of that person, or the spouse or intimate partner of that person; or

(2) with the intent—

(A) to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate, or cause substantial emotional distress to a person in another State or tribal jurisdiction or within the special maritime and territorial jurisdiction of the United States; or

(B) to place a person in another State or tribal jurisdiction, or within the special maritime and territorial jurisdiction of the United States, in reasonable fear of the death of, or serious bodily injury to—

(i) that person;

(ii) a member of the immediate family (as defined in section 115 of that person; or

(iii) a spouse or intimate partner of that person;

uses the mail, any interactive computer service, or any facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress to that person or places that person in reasonable fear of the death of, or serious bodily injury to, any of the persons described in clauses (i) through (iii) of subparagraph (B);

shall be punished as provided in section 2261 (b) of this title.

Neither one of these provisions have seen much action. The Sec. 223 annoying provision has seen none to our knowledge. The federal cyberstalking provision has seen a bit of enforcement action, but you have to patiently reseach to see much action.

Which leads us to....

So Monty Hall comes up to the contestant, and this time we are at the end of the game show and the contestant can only pick one door. Everyone is screaming and shouting: Door Number One! or Door Number Two! or Door Number Three! And some feds are in the audience too. What advice do the feds yell at the lucky contestant?

"Contact your local police department and inform them of the situation in as much detail as possible." - How You Can Protect Against Cyberstalking -And What To Do If You Are A Victim, DOJ (Appendix II in DOJ 1999 Report on Cyberstalking)

That would be Door Number One for our Let's Make a Deal Fans: local law.

Let’s see, what’s the most annoying thing online? It’s either Charlie the Unicorn, - that ought to be against the law! And, oh, I don’t know, how about spam! Any chance the Men-in-Black could politely inform spammers that pursuant to 47 USC 223, they are reeaaally annoying?!?!?

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