Do Not Feed the Troll – Cyberbullying and the Federal Government

The previous blog post addressed state efforts to combat griefing and cyberbullying. This one will address past and current federal efforts to combat these activities.

As previously mentioned, cyberbullying impacts youth today to an extent previously impossible. The Internet allows harassment and insults to fill all of an individual’s waking hours, and expands the theater of their humiliation to potentially millions of strangers. The consequences of this expanded misery are serious, with murder and suicide having resulted from cyberbullying.

Megan Meier’s story is an example of just how serious the consequences of cyberbullying can be. As discussed in a previous blog, the 13 year-old Meier committed suicide after being harassed on MySpace by a friend’s mother. The story made national news both after the original suicide and after the mother, Lori Drew, had her sentence under the CFAA overturned by a judge. The failure of the legal system to actually punish Drew for Meier’s suicide led to attempts to federally legislate the act of cyberbullying.

The Megan Meier Cyberbullying Prevention Act, introduced to the House of Representatives on April 2, 2009, was one such attempt. Cited as H.R. 1966, the bill sought to amend Chapter 41 of Title 18, United States Code, with the following language:

“Sec. 881. Cyberbullying

(a) Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.
(b) As used in this section–
(1) the term ‘communication’ means the electronic transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received; and
2) the term `electronic means’ means any equipment dependent on electrical power to access an information service, including email, instant messaging, blogs, websites, telephones, and text messages.
(b) Clerical Amendment- The table of sections at the beginning of chapter 41 of title 18, United States Code, is amended by adding at the end the following new item:
881. Cyberbullying.”

The wording of this bill attempted to establish an outright imprisonment punishment for individuals who would utilize the Internet and other means of electronic communications for the persistent and ongoing harassment.

While the Findings listed in the HR Bill were extremely compelling, listing such factors as “Sixty percent of mental health professionals who responded to the Survey of Internet Mental Health Issues report having treated at least one patient with a problematic Internet experience in the previous five years; 54 percent of these clients were 18 years of age or younger,” the hearing committee that reviewed H.R. Billy 1966 in September of 2009 determined that the bill as written would likely result in unconstitutional legal action stifling free speech of users on the Internet. Indeed, in the committee hearing on the bill, legislators stated both that the law would be “another chapter of over-criminalization,” and that “[a] good prosecutor could indict a ham sandwich.”

Any attempt to legislate online conduct in this manner is likely to encounter constitutionality issues. The outlawing of speech because it is persistent and hostile might stray aside of the 1st Amendment, especially in light of the fact that posting messages online is not as direct a means of harassment as calling them on a phone, a method of stalking/harassment that has been previously addressed by the federal government.

A prior attempt at the criminalization of griefing met a similar demise in the face of the 1st Amendment. In 2006, 47 USC 223 was amended to explicitly include the Internet in the clause of 47 USC 223 that makes criminal punishment available to anyone who:

“. . . 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;”

This law triggers in particular upon the anonymity of the user in question. This anonymity can lead to important free speech access to those who would fear their identities would lead to persecution or prosecution, but also to heinous abuses of that free speech as many Internet users are seduced into extreme cruelty or hate speech under the guise of anonymity.

The next post will address attempts to regulate this anonymity as a means to combat greifing and trolling.


~ by scottyufl on December 10, 2010.

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