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.

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~ by jhmcguire07 on September 21, 2009.

9 Responses to “General Crime and Cyberbullying”

  1. I highly disagree with the notion that we need ANY laws to combat cyberbullying. These laws mostly attempt to punish behavior that would not be illegal if committed in a real-world setting. In the case of behavior that would be illegal in the real-world setting, real-world laws already prohibit such behavior.

    I had to look up the ambiguous term “cyberbullying” in order to get a clearer picture of what kind of behaviors people feel need to be outlawed on the internet. The National Crime Prevention Council defines the term as “when the internet, cell phones, or other devices are used to send or post text or images intended to hurt or embarrass another person”. I found a few specific examples of cyberbullying as well, they include: sexual remarks, hate speech, false statements, threats, posting personal details, posting rumors, posting gossip, and instigating people to dislike another person”>

    In looking at these behaviors, it is clear that two types of behaviors make up cyberbullying: behaviors that are prohibited in the real-world, and behaviors that are not prohibited in the real world.

    Behavior such as making threats or sending sexually explicit content to children is against the law. There are also real-world remedies for libel and slander. In the case of these behaviors, there are already existing real-world remedies. There is no need for further legislation in these areas.

    The main issue here is the push to prohibit behaviors in the internet that would not be illegal in the real-world. Gossiping,
    hate speech, instigating people to dislike a person, nor posting personal information in a public forum are illegal in the real-world. What possible reasons can justify outlawing a behavior in one space, but not in another?

    People point to the Megan Meier case as justification for putting severe restrictions on internet use. Let us imagine that one of us says something mean to somebody else in real life, and that person ends up hanging themselves. Would anybody here seriously consider outlawing “saying mean things” in our everyday lives? Of course we wouldn’t; the idea that you cannot freely and honestly talk about other people in your everyday life is absurd! How anybody can demand that lawful behaviors in our everyday lives be outlawed on the internet is baffling to me.

  2. I think stalking statutes might become unconstitutionally overbroad if the credible threat requirement were removed. I found a Fla. 3d DCA case that might support that idea. In Pallas v. State, 636 So.2d 1358 (Fla. 3d DCA 1994), the court rejected a defendant’s argument that Florida’s anti-stalking statute (§ 784.048, Fla. Stat.) is unconstitutionally overbroad. Immediately after stating that defendant’s theory was based on a misinterpretation of the statute, the court went on to list the elements of the statute, including the credible threat requirement for felony liability. Id. at 1363. That suggests to me that the court deemed the credible threat requirement to be one of several elements of the statute that prevent it from criminalizing innocent behavior. Of course I use “innocent” in the legal sense of the word, not the moral sense. Obviously, it’s morally despicable to put someone in fear of a damaged reputation or of social humiliation, as cyberstalkers do when they post damaging information online or threaten to publish compromising photos, etc. But I think it’s perfectly proper to require a threat to something more substantial than reputation if you’re going to take away someone’s freedom for more than a year. (The Fla. Stats. permit imprisonment of more than 1 year only if there has been a threat of death or bodily harm, see § 775.082(4)(a) and 3(d).)

  3. People who commit virtual crimes are a major threat to society. Such individuals who can commit virtual crime, are capable and probably more likely to commit real crime. The ease of virtual crime is a door leading to real crime, just as the example given by Goodno of the TV Star Rebecca Shaeffer that was murdered after being cyberstalked for 2 years.

    Cyberbullying should be regulated to the extent that it gets out of hand. When saying “mean things” to someone becomes excessive, it most likely is cyberstalking, which should certainly be regulated. The laws must catch up with the technology.

    The comparison of gambling chips in a casino to Linden Dollars is a great analogy. I agree with this comparison. Linden dollars should be treated as real money.

    I agree fully with reasonable person standard. I think it is good that physical proximity is not included however, physical proximity could be amended to include causing someone to be in physical proximity because in some examples provided by Goodno, posting information/ false invitations caused other people to show up to someone’s door, which should be enough. It may be a stretch but physical proximity could also be expanded for the internet because although someone can be thousands of miles away, they are virtually right there with you in the room when on the internet in a live chat.

    In response to the necessity of the credible threat element, the ability to carry out a threat should not be considered, in my opinion, because the damage has already been done. What if you don’t know if the stalker has the ability? The fear is enough.

  4. Admittedly, cyberbulling and cyberharassment have negative psychological, emotional and even physical effects on the victims. As a matter of fact, any type of bulling and harassment has such effects and technology-enabled methods do not make this any less real. However, as freddiesuarez pointed out in his comment above, much of what we define as cyberbullying and cyberharassment revolves around behavior which is unethical, but not illegal in the real world. We have to carefully consider what behavior deserves criminalization and what behavior is the result of an escalating social problem that should be dealt with by alternative means. Many legislators, acting under public pressure have begun to enact laws specifically prohibiting cyberbulling and cyberharassment. Missouri, prompted by the death of Megan Meier, passed a law in 2008 banning Web-based harassment. The law states that communicating harassment by any means, including the Internet, is illegal, and increases penalties for harassment from a misdemeanor to a felony when the harasser is aged twelve and older and the victim is aged seventeen or younger. Florida has the “Jeffrey Johnston Stand Up for All Students Act” , which outlaws bullying and harassment “[t]hrough the use of data or computer software accessed through … a public K-12 educational institution.” Other states follow. I hope that state legislatures carefully consider the full scope of such laws and courts interpret them narrowly to punish only behavior that truly rises to criminal level…

  5. I think that it would have been better for all of us if there were laws to deal with cyberstalking and cyberbullying. I know that it seems as if would be hard to prove and to accomplish, but at the same time this is a real issue and it needs to be addressed. I agree that we need to bring the laws to the forefront of technology. There needs to be more advanced criminal law that deals with the cyber issues.

  6. I agree with the above comment that cyberstalking and cyberharrassment needs to have a law tailored specifically for it. For one thing, I don’t think we’ve had enough study on the subject to really come up with what a “reasonable standard” is. And even if a jury were to decide, there’s such a large disparity between the general public’s exposure to online forums. Also, especially with cyberbullying, how can one tell the difference between say, a flame war and a genuine threat? Certainly there are cases that are clearly examples of cyberharrassment (when arguments online go into the real world and names and addresses are published), but what about altercations that happen purely in the digital world that only has phycological harm in the real world? Communication in pure text also brings problems of misunderstandings due to the lack of facial expressions/body language/intonation, which makes it hard to tell if someone who types “I’ll kill you” really means it or not.

  7. What types of actions constitute cyberstalking is an emerging area that can be regulated, but it must be done so carefully. I am concerned that Goodno discusses the case of Amy Boyer as a cyberstalking incident. There, the “cyberstalker” created a website, detailing fantasies about Boyer, just listing general information about what she wore on a particular day and the like. While it is no doubt a great tragedy what happened to Boyer, creating an online journal alone cannot be criminal in a society that values free speech. Goodno’s “cyberstalker” never listed any threats, never sent any messages, and never even made Boyer aware of the website. Of course, how the information about Boyer was obtained may well have been real-world stalking, but creating a journal listing information should be no more of a crime online than it would be if the information was written with pen and paper. Deeming this type of activity cyberstalking detracts from actual threats and harassment that puts a victim in a perpetual state of fear. If anything, the fact that this person posted information online created a chance for someone to identify the issue and get him help. However, in and of itself, the journal cannot be criminalized if our society is going to give more than mere lip service to our notion of free speech.

  8. I have two different opinions on the idea of creating laws to control cyberbullying. On one hand, I disagree that we need laws to control cyberbullying, because this is not a crime. Kids get bullied at school, and that’s not a crime. Yes, cyberbullying does hurt people’s feelings, but to make this a crime simply because someone’s feelings are hurt seems absurd. I do think internet companies can create terms of services that control cyberbullying, and can create different ways to discourage this type of behavior by their users. Bullying is wrong, but I do not think it is wrong enough to be prosecuted.

    But on the other hand, if cyberbullying reaches the level of severe internet stalking and harassment, then law should be created to control this. When bullying on the internet is so severe that a person has a fear of immediate death, then laws must be created to protect people. I agree that cyberbullying is not a crime, but severe bullying is a crime. Law makers could create bright line rules that separate regular bullying from severe bullying. Both adults and juveniles could be liable for the crime of severe cyberbullying.
    People should be prosecuted for cyberbullying when a victim faces a really physical threat of harm. When behavior is only hurting a victim’s feelings, no laws should be created to control this. We can not control everything is this world.

  9. Are humans by nature good or evil? Without the eyes of society to be judging them, would they still be altruistic, or would we all be selfish? I think that virtual realities show us a window into Hobbes’s “state of nature”.

    A person’s behavior can change when behind the computer screen, just because there is no direct confrontation with other people, even if his identity is known. In some cases, this is a good thing; I find that I am more open with my words when I am chatting with a friend through instant message than if I were talking on the phone or in person. At the same time, I also find that my emotions flare-up more readily with people I don’t have to see in real life. When I am playing games, my personality changes and I become a bit competitive, and this extends even to when I am on the game forums. I have griefed and been griefed by other players. It usually starts as a territorial dispute, and eventually turns into a cat-mouse game in which I toy with my victim (or he with me) by making it impossible to do the quests in that area. Power corrupts, and anyone can become a bully if given the means.

    In Hobbes’s eyes, the law tamed the human being. I think that using the law is the right way to tame the internet as well. Ultimately, though, this will only deal with the external problem. The real issue of what is inside the person will never be addressed. Then again, is there ever an efficient way to address that?

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