General Crime and Cyberbullying
In recent years, advances in technology and use of the internet have drastically changed the way people communicate and interact. Specifically, social-networking and gaming websites allow users to converse in ways never before possible. The exchange of ideas and information is limited only to the speed by which a user can upload a photo, or how quickly she can type out an SMS text or Twitter update to her followers. However, as is typically the case with advances in technology, there is a downside. These revolutionary forms of communication give rise to the possibility of cyberabuse. Unfortunately, legislators have been slow to react and modernize current laws to protect victims of cyberabuse in this brave new world. That, however, is beginning to change in response to events such as the Megan Meier suicide.
Cyberabuse encompasses cyberbullying and cyberharassment amongst other internet abuse-related issues. According to Dr. Sameer Hinduja and Dr. Justin Patchin of the Cyberbullying Research Center, cyberbullying is defined as the willful and repeated harm inflicted through the use of computers, cell phones, and other electronic devices. In addition, cyberbullying is restricted to minors on both sides of the abuse. However, as noted by stopcyberbullying.org, once an adult becomes involved in the bullying, it is called cyberharassment or cyberstalking.
The Megan Meier suicide brought to the forefront the inadequacy of our current criminal laws to address cyberabuse issues. According to H. Dean Steward, the attorney for Lori Drew, both the FBI and the US Attorney in St. Louis looked at the case and decided that no crime had been committed in the Federal system. However, six months later, the US Attorney in Los Angeles indicted Drew under 18 U.S.C. §1030, the Computer Fraud and Abuse Act (CFAA). Going after Drew under the CFAA was novel because it was essentially computer hacking by a violation of MySpace’s Terms of Service (TOS) agreement. According to Steward, one of the biggest issues with the Drew case is that the laws did not reflect advances in technology. He points to the fact that most of the law written on 18 U.S.C. §1030 is civil in nature, and does not translate to the criminal context. Applying civil opinions to a criminal trial is problematic because the varying evidentiary standards and burden of proof simply does not mesh. In essence, the government attempted to fit a square peg in a round hole by prosecuting Drew under the CFAA, rather than a much-needed criminal cyberabuse statute.
One solution to bring statutes in line with current technology comes from Naomi Goodno, who points out that the current “offline” stalking statutes contain a credible threat requirement, which fails to fully address cyberstalking. See Naomi Goodno, Cyberstalking, A New Crime: Evaluating the Effectiveness of Current State and Federal Laws, 75 Mo. L. Rev. 125, 137 (2007). This requirement focuses on the stalker’s conduct. Id. at 139. Goodno proposes that the solution is to write statutes that shift the focus from the cyberstalker’s conduct to the effects on the victim. Id. at 139-40. In other words, by instituting a reasonable person standard, the question would become whether it is reasonable for the victim to fear for her safety in light of the cyberstalker’s conduct, rather than whether the cyberstalker had the ability to carry out the threat. This language would allow for the prosecution of a cyberstalker who, for example, posts the contact information of his victim on Craigslist under casual encounters, inviting casual sex. The prosecution of this type of third-party harassment would not be possible under current statutes since the cyberstalker did not physically threaten the victim.
Because of these new types of harassment, it is important that legislators work to bridge the gap in current laws to bring them in line with advances in technology. Gone are the days that harassment was limited to threatening letters and phone calls. Now with the click of a mouse, a harasser is able to victimize an innocent person from the seclusion of his own home. The scary reality is that once something hits the internet, it is there in perpetuity for all to see. Accordingly, in this internet age, more sufficient laws are needed to prosecute cyberbullies and harassers alike.
~ by jhmcguire07 on September 21, 2009.