Cyberstalking: Investigating and Prosecuting Stalking in Virtual Spaces

According to a National Violence Against Women Survey, which defines stalking as referring to instances where the victim felt a high level of fear, one out of every 12 women (8.2 million) and one out of every 45 men (2 million) in the United States have been stalked at some time in their lives.  A 1999 Department of Justice Report claims that there are 90 million Americans with access to the Internet, a number that has grown exponentially in the last eleven years.  With these statistics, it seems that if even a small portion of these stalking events are done online, cyberstalking is a large, growing problem.

Cyberstalking is a difficult concept to quantify, since there is no current universally accepted definition of cyberstalking.  The Department of Justice Report defines cyberstalking as “use of the Internet, e-mail, or other electronic communications devices to stalk another person.”  Stalking outside of the virtual context requires things such as a credible threat against person, family, or implied threats of physical violence.  Cyberstalking, like offline stalking, often involves a person seeking power and control over the person they’re stalking, but doesn’t involve physical contact, which often leads both the victim and the police to believe it is somehow less harmful than offline stalking (a misconception that can be extremely dangerous).

Prior law often required physical harm to a victim before authorizing the police to make an arrest.  Despite the fact that almost every state has passed anti-stalking legislation, there have been difficulties transitioning the new legislation into the real world.  For example, a defendant is guilty of menacing by stalking when that person engages in a pattern of conduct that knowingly causes another to believe that physical harm or mental distress will occur.  However, many courts have struck these kinds of laws down as too vague or granting too much discretion to the police and courts in deciding which cases to enforce and prosecute.  There have also been problems with anti-stalking laws being far too overbroad.  Florida, for instance, has altered its anti-stalking law so that the law can be used against abortion clinic blockaders, leaving the law open for challenge and potentially weakening the options for actual victims of stalking.

Federal legislation is also lacking when it comes to prosecuting cyberstalking.  According to the Department of Justice Report, “In particular, the Cable Communications Policy Act of 1984 (CCPA) prohibits the disclosure of cable subscriber records to law enforcement agencies without a court order and advance notice to the subscriber. See 47 U.S.C. 551(c), (h). As more and more individuals turn to cable companies as their ISPs, the CCPA is posing a significant obstacle to the investigation of cybercrimes, including cyberstalking. For example, under the CCPA, a law enforcement agency investigating a cyberstalker who uses a cable company for Internet access would have to provide the individual notice that the agency has requested his/her subscriber records, thereby jeopardizing the criminal investigation.”

Cyberstalking presents additional challenges, some of which will be difficult to overcome.

1)      Geography – offline stalking requires a certain proximity between stalker and victim, whereas cyberstalkers may be located across the street, across the country, or in another country altogether.  This presents jurisdictional issues for police and prosecutors, who have a difficult time investigating and prosecuting over long distances.

2)      Police preparedness – cyberstalking is still a relatively new concept, and lack of training and awareness can lead to problems escalating when the stalking isn’t fully understood.  Examples of cyberstalking range a victim repeatedly receiving the message “187,” (the section of the California Penal Code for murder) to posting things such as victims names, addresses, phone numbers and how to bypass the security systems at victims’ houses.  With such a range of possibilities, it’s not surprising that police are often unprepared to identify and investigate cyberstalking incidents.

3)      The impersonal nature of cyberstalking – perpetrators who might not be comfortable with physical confrontation of their victims may have no problem dashing off a quick email threatening someone, especially if they never need to come face to face with the victim.  The Internet is low cost and everyone knows how to use it, so it has suddenly become easier to remotely stalk someone without much thought to it, nor fear of real life confrontation.

4)      Anonymity of the Internet – free email accounts with no way of verifying identifying information, relay mail servers, and ISPs with no obligation to divulge user information make the internet a safe and easy place to stalk with impunity.

Recently, legislation has been introduced and passed the House which would give law enforcement broader power to prevent and prosecute stalkers.  The Simplifying the Ambiguous Law, Keeping Everyone Reliably Safe Act of 2010 (STALKERS Act of 2010):

Amends the federal criminal code to revise the definition of the crime of stalking and extend criminal penalties for such crime to anyone who, with intent to kill, physically injure, harass, or intimidate a person, engages in any conduct in or affecting interstate or foreign commerce or in the special maritime and territorial jurisdiction of the United States that:
(1) causes or attempts to cause bodily injury or serious emotional distress; or
(2) occurs in circumstances where the conduct would be reasonably expected to cause emotional distress. Increases penalties for such crime if:

(1) the offense involves conduct in violation of a protection order; or
(2) the victim of the offense is under the age of 18.

Currently, federal law is primarily focused on offline acts of stalking such as following someone across state lines, sending unsolicited mail, or making harassing phone calls.  By extending the scope of federal law to cover “any conduct in or affecting interstate commerce,” law enforcement could prosecite any act of stalking that is reasonable expected to cause another person serious emotional distress.  It will be interesting to watch if this legislation passes the House, and see what differences it will make in the problem of cyberstalking.

In the meantime, states should review their existing stalking and other statutes to determine whether they address cyberstalking and, if not, promptly expand such laws to address cyberstalking.  ISPs should develop additional means to empower individuals to protect themselves against cyberstalking, including making it easier to report abuse, filtering, and blocking options.  Police should train and educate themselves to better deal with the crime of cyberstalking.  Finally, everyone should work together to discover the true extent of the problem and gather more information so everyone can see the true extent of cyberstalking.

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~ by kateufl on September 28, 2010.

14 Responses to “Cyberstalking: Investigating and Prosecuting Stalking in Virtual Spaces”

  1. Thanks for your post. I especially like your list of things to be done while we all wait for new or better law on cyber stalking. ISPs could also enforce their Terms of Service more actively and just cut off offending parties. There are typically clauses that give them the right to terminate service for criminal or harassing conduct, and like most agreements, there’s probably a clause that gives them the right to terminate service at their discretion or for no reason at all. This wouldn’t fix everything–after all, the offending party could just find other access to the Internet. However, it’s an available measure that would certainly slow some people down or just let them know that someone else doesn’t condone their conduct besides the victim.
    I’d like to add that users should takes steps to guard their own privacy. Most services offer some mechanism by which to do that, and if not, maybe those are simply to be avoided. Many people would feel foolish leaving their car unlocked to become a victim of theft. What about leaving a Facebook profile open to the world with a person’s name, photographs, email address, phone number, and location?

  2. I imagine the number of men stalked is actually higher but less men report it. The men that do report it are probably at the point that the stalker has gone beyond verbal harassment and has engaged in some type of crime like vandalism or actual attempt to harm.

    I think the biggest problem with cyberstalking is the geography and the anonymity of it. How do local police actively seek out someone that is located in other jurisdictions? Second, do they really care? I know it sounds cold but I can’t imagine local police using resources to track down someone that is currently in no position to render any physical harm to a person in their jurisdiction.

    Of course, this news article shows that cyberbullying/stalking CAN lead to people traveling cross country to do harm. http://www.msnbc.msn.com/id/19980505/

    I think the police simply have to weigh the credibility of the situation when looking at people from distances. In situations that occur with people located in close proximity, an injunction or no contact order would seem to be the best and appropriate initial action.

    I think the second problem is clearly anonymity when looking at cyberstalking. A lot of people, in my opinion, just won’t say certain things to people in public that they will say on the internet or a message board. It actually is a pretty common joke evidenced by pictures such as the one located on this blog: http://4chanmemeandmotivational.wordpress.com/2010/08/03/internet-tough-guy-because-its-easy-to-be-a-6-foot-4-olympic-powerlifter-and-streetfighting-god-from-behind-the-confines-of-a-keyboard/

    I think in the end, Cyberstalking should be treated equally as regular stalking. The police should take the threat seriously, investigate, then assess the credibility of the situation. If the victim doesn’t appear to be in any harm, they have to make the judgment call to move on and not continue to investigate. If the victim appears to be in harm’s way, take whatever steps needed to assure the victim’s safety.

  3. The problem with “cyberstalking” as a whole is that it is a very difficult concept to grasp. Besides having the normal issues of not being fully defined, there are certain challenges unique to the internet that make it difficult to create and execute laws that will effectively and efficiently protect the public.

    For example, The Simplifying the Ambiguous Law, Keeping Everyone Reliably Safe Act of 2010 “increases criminal penalties for a person who harrasses…intimidates… engages in any conduct in or affecting interstate or foreign commerce.. that occurs in circumstances that would reasonably… cause …distress… if the offense… violates a protection order.”

    Well that law begs the question, “What is a violation?” Before cyberstalking took off, a protective order told you no calling, emailing, or coming within 100 feet of such person. Now, even the definition of a violation is tainted. If I have an injunction against me, am I violating it by reading the person’s FB statuses? Am I violating it by following their tweets? What about tracking their GPS location on their cell phones using applications such as “Places” that do not require me to violate any laws because that person installed it willingly?

    Moreover, and more importantly, how does a person being stalked online even KNOW they are being stalked?? With the information superhighway making virtually all our information public, with Google making it possible to find out a person’s entire internet history and public records with the click of a search button, there is a myriad of information available to predators without a person so much as having an inclination that they are being harassed. By the time such a person DOES find out, it is usually after months of stalking and even then, what can be done??? Making your FB page and MySpace page private only bring a certain amount of privacy, but how do you stop the stalker from paying an internet search company for your public records and items like your address and phone number? How do you stop the personal anxiety that you feel knowing some unnamed stranger is out there with access to virtually everything that makes you, you?

    Before the internet, it took real effort to locate a person’s information, however, with the advent of the internet and companies such as Intelius that will sell your soul for $7.95, a person is virtually powerless from being stalked. And even worse, neither the police nor the person being stalked can stop the stalking. What are the police going to do if I choose to spend all my time reading your FB statuses or your blogs, or following you on Second Life? If I am not talking, threatening, or harassing you verbally, there is little that can be done that would not be an impediment to my own freedom. I am curious what tactics can be employed to curb these practices and whether even creating laws with harsher penalties will even have a deterrent effect.

  4. I imagine the number of men stalked is actually higher but less men report it. The men that do report it are probably at the point that the stalker has gone beyond verbal harassment and has engaged in some type of crime like vandalism or actual attempt to harm.
    I think the biggest problem with cyberstalking is the geography and the anonymity of it. How do local police actively seek out someone that is located in other jurisdictions? Second, do they really care? I know it sounds cold but I can’t imagine local police using resources to track down someone that is currently in no position to render any physical harm to a person in their jurisdiction.
    Of course, this news article shows that cyberbullying/stalking CAN lead to people traveling cross country to do harm. http://www.msnbc.msn.com/id/19980505/
    I think the police simply have to weigh the credibility of the situation when looking at people from distances. In situations that occur with people located in close proximity, an injunction or no contact order would seem to be the best and appropriate initial action.
    I think the second problem is clearly anonymity when looking at cyberstalking. A lot of people, in my opinion, just won’t say certain things to people in public that they will say on the internet or a message board. It actually is a pretty common joke evidenced by pictures such as the one located on this blog: http://4chanmemeandmotivational.wordpress.com/2010/08/03/internet-tough-guy-because-its-easy-to-be-a-6-foot-4-olympic-powerlifter-and-streetfighting-god-from-behind-the-confines-of-a-keyboard/
    I think in the end, Cyberstalking should be treated equally as regular stalking. The police should take the threat seriously, investigate, then assess the credibility of the situation. If the victim doesn’t appear to be in any harm, they have to make the judgment call to move on and not continue to investigate. If the victim appears to be in harm’s way, take whatever steps needed to assure the victim’s safety.

  5. I think this is another example of how our laws are always a few steps behind when it comes to technology. Technology, especially with the internet culture, changes rapidly with new trends creating new “security” issues that were previously non-existent. For instance, it was not too long ago when e-mail was still a unknown concept, and social media is clearly the product of the last five years. It seems the more effective way to safeguard against threats such as cyberstalking would be self awareness and education of the user because laws are never going to be able to keep up with technology and fully protect the user.

    Another point to consider is in regards to the boundaries of what is considered cyberstalking. For example, is looking up an acquaintance’s Facebook page or running a search on Google considered cyberstalking? Is it not common to refer to looking at an acquaintance’s Facebook page as “stalking”? Clearly, searching a friend’s Facebook page is not the same as the act of stalking in the real world, but where do you draw the line?

  6. I imagine the number of men stalked is actually higher but less men report it. The men that do report it are probably at the point that the stalker has gone beyond verbal harassment and has engaged in some type of crime like vandalism or actual attempt to harm.
    I think the biggest problem with cyberstalking is the geography and the anonymity of it. How do local police actively seek out someone that is located in other jurisdictions? Second, do they really care? I know it sounds cold but I can’t imagine local police using resources to track down someone that is currently in no position to render any physical harm to a person in their jurisdiction.
    Of course, this news article shows that cyberbullying/stalking CAN lead to people traveling cross country to do harm. http://www.msnbc.msn.com/id/19980505/
    I think the police simply have to weigh the credibility of the situation when looking at people from distances. In situations that occur with people located in close proximity, an injunction or no contact order would seem to be the best and appropriate initial action.
    I think the second problem is clearly anonymity when looking at cyberstalking. A lot of people, in my opinion, just won’t say certain things to people in public that they will say on the internet or a message board. It actually is a pretty common joke evidenced by pictures such as the one located on this blog: http://4chanmemeandmotivational.wordpress.com/2010/08/03/internet-tough-guy-because-its-easy-to-be-a-6-foot-4-olympic-powerlifter-and-streetfighting-god-from-behind-the-confines-of-a-keyboard/
    I think in the end, Cyberstalking should be treated equally as regular stalking. The police should take the threat seriously, investigate, then assess the credibility of the situation. If the victim doesn’t appear to be in any harm, they have to make the judgment call to move on and not continue to investigate. If the victim appears to be in harm’s way, take whatever steps needed to assure the victim’s safety.

  7. I think the biggest challenge faced by law enforcement with regards to cyberstalking is how difficult it is to define the nature of the crime. This challenge is only exacerbated the constant changes in technology. I agree with Kate in the fact that, in general, cyberstalking seems to be viewed as less detrimental and not as serious a threat as real-life stalking. I also agree that this is a mistake. Cyberstalking is a serious and growing issue, but it is hard to legislate. The biggest issue is whether laws that regulate cyberstalking overstep the freedoms given in the First Amendment. While I do think that cyberstalking is a crime that there should be legislation against, I can understand why it is hard for states to pass laws against it while making sure to not infringe upon first amendment rights. I think because cyberstalking (and cyberbullying, and most virtual crimes) are such new issues, it would be in the best interest of the states and of the population to focus some of the attention towards education and awareness programs that let people know what constitutes “cyberbullying” for each state, and ways to avoid being a victim of cyberbullying.

  8. “Stalking” in the virtual context is often less immediately threatening than physical stalking due to the lack of proximity and fear of imminent bodily violation that accompanies it. At the same time, cyberstalking can be exponentially more invasive and can leave a stalker with many more avenues of attack than traditional stalking.

    It is these increased avenues for stalking, combined with the Internet anonymity that Kate pointed out, that makes cyberstalking a lot more invasive and threatening than law enforcement seems ready to admit.

    In this modern age, emails, text messages, even Facebook messages and IM should be viewed with the same seriousness as phone calls. Threatening messages in any of these formats hold equal weight to the recipients, and the law would do well to begin reflecting the validity of electronic communication.

    • I agree that e-mails, text messages, and facebook messages should all be viewed with the same seriousness as phone calls, but the problem comes in when you are dealing with an anonymous individual who may not even be in the United States. It seems that were we can legitimately know who is sending the message that they should be taken quite seriously (like if Deonte Thompson sent me a facebook message after I booed him for dropping another pass that it was time to die). However, where some anonymous guy from Russia is sending me a message that it’s time to die, it is harder to take seriously and actually enforce (although I guess I should be more scared of the guy from Russia).

      It just seems too difficult to enforce in the internet context where anyone can get behind a keyboard and type whatever he or she chooses. I guess that wouldn’t be such a problem, though, if they actually had to fear the consequences.

  9. I think Kate’s point about the misconception that victims and the police often share – that cyberstalking is somehow less harmful than offline stalking since it doesn’t involve physical contact – is an important consideration. This misconception can be extremely dangerous, especially because the Internet allows the cyberstalker to remain anonymous, and have access to much more personal information about their victim than they would otherwise have.

    Kate also notes that it has become easier to remotely stalk someone without much thought to it, nor fear of real life confrontation. I agree that it has become easier, but what do you mean by no fear of real life confrontation? Confrontation with their victim? Or confrontation with law enforcement? I think that while cyberstalkers enjoy the benefits of anonymity, many will want to confront their victims in real life.

    I believe there does need to be some protection against cyberstalking, especially because of the emotional distress it causes people. I also like the idea that school officials should be responsible for reporting possible stalking/bullying, especially if it is occurring at school. There really isn’t much protection for students who are ganged up on and tormented in school, whether it is through the Internet or in real life, and the potential harm can be disastrous, as was the case with Phoebe Prince.

  10. This is a really interesting issue. Particularly so because, as you touched on in your discussion of the anonymous and impersonal nature of the internet, internet “culture” (if one can call it that) almost promotes mistreating others. It only takes a few minutes of glancing at YouTube comments or 4chan (if you’re brave enough) to illustrate that much of the daily internet interaction could fit, at least loosely, into the definition of cyberstalking. But surely all of these people can’t be criminals in the traditional sense.

    The problem as I see it is that, like so many attempts to fit the internet into traditional legal frameworks, line drawing is difficult when all the rules change. If someone is following another around in real life and harassing him or her to the point of fear for physical safety, it of course makes sense to criminalize the behavior. But this doesn’t exactly translate to the virtual world, where negative exchanges are commonplace. I wholeheartedly agree that the harm aimed to be prevented is a serious one and that the attempts to deal with it are admirable. I just worry that one of the virtues of the internet, namely the option of anonymity, could be eviscerated if the scope of these efforts to prevent cyberstalking is too large.

  11. I think it’s very interesting that cyberstalking shares so many of the issues that we have seen before in this class and in legal problems generally on the internet. Jurisdiction is always a problem when dealing with a medium as globally pervasive as the internet. It seems like the STALKER Act could be as overly inclusive as the CFAA because it applies to any person who uses interstate commerce to stalk someone. Could this possibly put cyberstalking solely in Federal hands, taking jurisdiction out of the states completely? The CCPA’s interference with legitimate police investigations also shows up in cases of infringement under the DMCA and general IP law. Cable companies have an interest in protecting user privacy (because, as Kate mentioned, users will be likely to switch providers if they feel their rights are not protected) which has to be balanced with the efforts of right holders to enforce their rights (by identifying and bringing suit against infringers).
    I’ve heard it said that the law is always 10 years behind the newest technology. I think that’s pretty evident with this issue in particular. Laws that would require physical proximity or physical harm do not fully comprehend the very real danger from cyberstalking. A would be stalker is probably *more* likely to use the anonymity of the internet to his/her advantage than to pursue physical confrontation if they are concerned about the legal repercussions at all. I like that Kate gave some examples of ways that this area could improve and develop while we wait on the slow process of legislation.

  12. While I think that cyber-stalking is something that should not go unpunished, I see a lot of problems creating an adequate definition.

    Two concerns I have are knowledge of the stalker and actual fear of physical harm or mental harm.

    I see the requiring actual knowledge of the stalker as a problem because it does not negate the fear. If anything I see it increasing the fear because one might be fearful that the person is physically close enough to cause physical harm.

    As far as the fear of harm, at least in the case of purely cyber relationship (for example, two people who are on different continents), I see a problem proving actual fear of physical harm. With mental harm, it makes me think of the issues that Brenner discussed, i.e. can a person suffer real world mental harm (that we want to criminalize) for something that occurs purely in a virtual world? It is like criminalizing virtual rape. Furthermore, do we want to punish this type of “stalking?”

    On the other hand, stalking and bullying are different than rape, which has as an element physical penetration.

    I guess my point is that these are things that should be addressed, and questions that I have. What cyber crime warrants criminalization and what does not?

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