A Cybercrime and Digital Law Position Paper
According to the Center for Disease Control and Prevention, one in six women and one in 17 men have been the victim of stalking at some point in their lives (“Preventing Stalking |Violence Prevention|Injury Center|CDC,” 2019).
A 2014 CDC study found that:
- an estimated 55.3% of female and 56.7% of male stalking victims had received unwanted messages, such as text and voice messages;
- 54.5% of female and 58.2% of male stalking victims had received unwanted telephone calls, including hang-ups; and,
- an estimated 49.7% of female and 32.2% of male stalking victims had been watched, followed, or spied on with a listening device or other devices such as a camera or global positioning system (GPS) device (Carter, 2015, p. 354).
The problem has become an epidemic, and as cited by Wilkinson (Wilkinson, 2016), advances in mobile and computing technology, allow stalkers/harassers to physically locate, harass, intimidate, and destroy the lives of their victims without leaving the comfort of their own dwellings.
While there are individuals who would exhibit bullying and stalking behavior without the assistance of technology, psychologists attribute the prevalence of aggressive behavior in cyberspace to a “disinhibition effect” which strips away, or suppresses normal inhibitions, literally bringing out the worst in some people (Yadin, 2017, p. 853). In Yadin’s (Yadin, 2017, p. 853) opinion, harassment and stalking in cyberspace can be an even more severe problem than in real life because these crimes are easier to perpetrate, can have a more lasting effect, and more often take the form of mob behavior. This view is supported by Gaus’s (Gaus, 2012) study of trolling behavior, which found that victims are often randomly targeted, and in cases of “lulz trolling” harassed for no other motive than entertainment.
The fact that cyberstalking and other cybercrimes are conducted remotely, across state and international borders and with anonymity makes these crimes extremely difficult to investigate. Seralathan (Seralathan, 2016, p. 429) cites a former Federal Bureau of Investigations (FBI) supervisory special agent, previously involved with cybercrimes investigations, as suggesting that the unique difficulties of tracking anonymous perpetrators of cyberharassment, coupled with minor punishments for such crimes, discouraged officials from taking certain steps to fully investigate cyberharassment cases. As Holt explains (Holt, Bossler, & Seigfried-Spellar, 2018), a digital forensic investigation is a multi-stage process involving the survey/identification, collection/acquisition, and examination/analysis of the evidence before a final report summarizes a case. Since the identification process alone can be time-intensive and require costly training or contracts with outside investigative agencies (2016, p. 429), and punishments are often classified as misdemeanors, law enforcement is less likely to prioritize these cases. Yet as Blanch and Hsu (2016, p. 3) make clear, whether the case is classified as cyberbullying, cyberharassment, cyberstalking, or another form of cyber-assault, the commonality to all of these offenses is the tremendous harm visited upon the victims.
In this paper, I will present an argument for amending U.S. Code Title 18, Chapter 110A of the Domestic Violence and Stalking Definition (18 U.S. Code § 2266. Definitions) to include references to, and clear definitions of the terms cyberbullying, cyberharassment, cyber deception, sextortion, revenge porn and cyber threats (such as doxing and swatting). These acts should then be classified as levels of stalking under Section 2261A – Stalking (18 U.S. Code § 2261A) and be punishable under Section 2261 – Domestic Violence (18 U.S. Code § 2261). Also, based on research conducted since the initial draft of the position paper, I advocate for a subjective reasonableness standard based on the perspective of the victim, which holds the harm caused to the victim as a priority, and allows for consideration of the victim’s mental and psychological maturity.
Definition of Terms
Before I proceed with the legal definitions of “cyberbullying,” “cyber-harassment” and “cyberstalking,” it is important to address the commonly accepted definitions of the terms “bullying,” “harassment” and “stalking.” Merriam Webster defines “bullying” as: “abuse and mistreatment of someone vulnerable by someone stronger, more powerful; the actions and behavior of a bully; prone to or characterized by overbearing mistreatment and domination of others” (“Definition of BULLYING,” n.d.). Based on this description, bullying occurs in a relationship involving an imbalance of power. Harassment is defined as behavior that demeans, humiliates, or embarrasses a person and is viewed as disturbing, upsetting, or threatening (“Harassment,” 2019). Stalking is defined as unwanted and/or repeated surveillance by an individual or group toward another person. It is interrelated to harassment and intimidation, which may include following the victim in person or monitoring them (“Stalking,” 2019). Each of these terms defines a socially unacceptable, abhorrent, and, as in the case of workplace harassment or stalking, an illegal activity. Each term also has an equivalent word that defines that same behavior when committed with a computer or other electronic device.
The Encyclopedia of Social Deviance (Copes & Forsyth, 2014, p. 164) defines cyberbullying as intentional, aggressive behavior toward another person that is performed through electronic means (i.e., computers, cell phones, personal digital assistants [PDAs]). that is intended to psychologically and emotionally harm someone and is often repeated multiple times. It is further noted that the term “cyberbullying is generally used when referring to interactions between minors while the terms “cyber-harassment” or “cyber-stalking” is used when both the victim and perpetrator(s) are adults. (Copes & Forsyth, 2014). However, this distinction in terms may lead to bias and can create an inaccurate picture of these cybercrimes.
In the case of both Amanda Todd (Stalking Amanda Todd, n.d.) and Megan Meier (“Megan’s Story,” n.d.), the victim was a pre-teen and the perpetrator was an adult. Conversely, there are cases in which minors harass teachers or other adults. To minimize the impact of cyberbullying based on the age of the perpetrator and/or victim would be a serious mistake. The U.S. Centers for Disease Control and Prevention have reported that victims of bullying are two to nine times more likely to consider suicide than youth who have never been bullied (Copes & Forsyth, 2014, p. 83). However, I believe that the law should allow judges and juries to consider the mental and emotional maturity of the perpetrator during sentencing.
As Blanch and Hsu (Blanch & Hsu, 2016, p. 3) explains, there are several different terms to describe the conduct affecting victims like Amanda Todd, including cyberharassment, cyberstalking, cyberbullying, cyberthreats, cyberextortion, sextortion, and revenge porn. Each of these terms represents an act that can occur in isolation or conjunction when a victim is targeted for cyber-abuse and should be defined in the U.S. Criminal Code.
While the terms “cyberbullying” and “cyber-harassment” are often used interchangeably, they have distinct legal definitions. Blanche and Hsu (Wilkinson, 2016, p. 3) define “cyberbullying” as bullying that takes place using digital technology, such as cell phones, computers, social media sites, text messages, chat, and Web sites. However, because it is their position that not all cyberbullying constitutes a federal crime, they shy away from further use of the term. The unclear definition of the word cyberbullying is a semantics issue that reflects a prevailing attitude about the connection between “cyberbullying” and its potential for harm. It has created a biased interpretation of the term and a critical flaw in the law. As mentioned earlier, bullying occurs when one party is more powerful than the other. While this often applies to the relationship between an adult and a child, it could also apply to a variety of other situations in which the perpetrator is in a position of power over their victim.
According to the National Conference of State Legislatures, the legal definition of cyber-harassment is engaging in threatening or harassing email messages, instant messages, blog entries, or Web sites dedicated solely to tormenting an individual yet posing no credible threat. (Wilkinson, 2016, p. 5). Yet as Blanche and Hsu (Wilkinson, 2016, p. 5) point out, when the harassment takes the form of “swatting” (deceiving emergency responders into dispatching a Special Weapons and Tactics SWAT team to the location of the victim) or “doxing” (broadcasting personally identifiable information about an individual on the Internet and exposing the victim to additional harassment by phones, email, and at home), the threat of potential physical harm can be quite real. Consider the case Atatiana Jefferson who was shot and killed in her own home by a police officer after a call had been placed for a welfare check on the house (“Who was Atatiana Jefferson?” n.d.). I am not implying that Ms. Jefferson was a victim of swatting. However, if a similar scenario occurs involving a proven case of swatting, the person placing the call should be held accountable.
Cyberstalking is defined as a pattern of repeated and unwanted attention, harassment, contact, or any other course of conduct directed at a specific person that would cause a reasonable person to feel fear (Wilkinson, 2016, p. 4). It includes: repeated, unwanted, intrusive, and frightening communications from the perpetrator by phone, mail, and/or email; repeatedly leaving or sending the victim unwanted items, presents, or flowers; following or lying in wait for the victim at places such as home, school, work, or place of recreation; making direct or indirect threats to harm the victim, the victim’s children, relatives, friends, or pets; damaging or threatening to destroy the victim’s property; harassing the victim through the Internet; and, posting information or spreading rumors about the victim on the Internet, in a public place, or by word of mouth.
Extortion is the practice of obtaining something of value-usually money-through actual or threatened force, violence, or fear; therefore, cyber extortion refers to extortionate communications transmitted digitally, such as online or via text message (2016, p. 6). Sextortion is a form of cyber extortion which occurs when individuals demand that the victims provide them with sexual images, sexual favors, or other things of value (2016, p. 6). As in the case of Amanda Todd, these demands are accompanied by threats to harm or embarrass the victims if they fail to comply, for example, by threatening to distribute personal and intimate photos of the victims or their personal information unless they agree to send the offenders sexually explicit images (2016, p. 6).
To date, nearly all U.S. states have passed laws addressing some form of cyberharassment or stalking; however, the language, definitions, scope, and applications of the laws are inconsistent. Among the critical gray areas are those involving “reasonable fear” and the “reasonable expectation of causing harm.” As Yalin (2017, p. 854) points out, the statutes in some states use an objective reasonableness standard based on the perspective of the victim, some use a subjective reasonableness standard based on the same perspective, some use an objective reasonableness standard based on the perspective of the perpetrator, others use a specific intent element, and others use a combination of the above.
The subjective standard and objective standard are legal standards for the knowledge or beliefs of a defendant in a criminal law case. In essence, it addresses an individual’s intent and state and mind (“Subjective and objective standard of reasonableness,” 2019). Wikipedia provides the following interpretation of these legal definitions:
“An objective standard of reasonableness requires the finder of fact to view the circumstances from the standpoint of a hypothetical reasonable person, absent the unique particular physical and psychological characteristics of the defendant. A subjective standard of reasonableness asks whether the circumstances would produce an honest and reasonable belief in a person having the particular mental and physical characteristics of the defendant, such as their personal knowledge and personal history, when the same circumstances might not produce the same in a general reasonable person.” (“Subjective and objective standard of reasonableness,” 2019)
The U.S. Stalking Law currently reads as follows:
(1)travels in interstate or foreign commerce or is present within the special maritime and territorial jurisdiction of the United States, or enters or leaves Indian country, with the intent to kill, injure, harass, intimidate, 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 or presence engages in conduct that—
(A)places that person in reasonable fear of the death of, or serious bodily injury to—
(ii)an immediate family member (as defined in section 115) of that person;
(iii)a spouse or intimate partner of that person; or
(iv)the pet, service animal, emotional support animal, or horse of that person; or
(B)causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person described in clause (i), (ii), or (iii) of subparagraph (A); or
(2)with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person, uses the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce to engage in a course of conduct that—
(A)places that person in reasonable fear of the death of or serious bodily injury to a person, a pet, a service animal, an emotional support animal, or a horse described in clause (i), (ii), (iii), or (iv) of paragraph (1)(A); or
(B)causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person described in clause (i), (ii), or (iii) of paragraph (1)(A),
shall be punished as provided in section 2261(b) of this title.
(“18 U.S. Code § 2261A – Stalking,” n.d.)
I propose that the U.S. Criminal Code for “Stalking” (“18 U.S. Code § 2261A – Stalking,” n.d.) be amended in a way that treats psychological and emotional harm with the same seriousness as physical harm, and views cyber-bullying, harassment and stalking as degrees of the same crime, a felony punishable under U.S. Code 2261 Interstate Domestic Violence (“18 U.S. Code § 2261—Interstate domestic violence,” n.d.). This revision would eliminate the subjective question of “credible threat” and “reasonable fear” by clearly defining specific acts as having criminal intent.
As Blanche and Hsu (Wilkinson, 2016) explain:
Subsection (B) requires instead that the course of conduct causes attempts to cause or would be reasonably expected to cause substantial emotional distress to the victim or the victim’s immediate family. The statute previously required that the victim and the perpetrator be in separate jurisdictions, making the statute inapplicable in a number of stalking cases. A significant amendment to the cyberstalking statute was passed in 2013, which eliminated this requirement. The penalties available for violating section 2261A, contained in section 2261(b), range from a maximum of five years to a maximum of life where stalking results in death of the victim.
I suggest that the revision to the law model Willard’s typology which provides an academic definitions for the acts of flaming, denigration, impersonation, outing, trickery, exclusion, harassment, and stalking (Holt et al., 2018, p. 343), and provides each with a legal definition as a level of stalking behavior.
Also, if it can be established that cyber-bullying, harassment, or stalking was intended to target a person based on race, gender, sexual orientation, or religion, be prosecuted as a hate crime.
There is a tendency to dismiss the seriousness of the cyberbullying/harassment/stalking offenses, which can be attributed to the fact that a large percentage of the victims are teenagers and, the majority are female. However, as Holt (Holt, Bossler, & Seigfried-Spellar, 2018) explains, cyberstalking can involve everything from trolling a person online, gathering personal information about that individual, and sending hostile or threatening messages that imply that they will cause bodily harm to the victim or their property. Perpetrators can also hide behind bots, create deep fakes, and manipulate audio to torment their victims.
As Carter (2015, p. 335) states, “stalking does not discriminate, it knows no color, gender, or sexuality . . . anyone can be targeted.” Classifying these crimes as misdemeanors ignores the impact that they have on victims’ lives.
In the documentary Cybercrime, Leah Freiman (Roldan, 2019), CEO of ITCon, Inc. shared the story of one of her clients. The woman, who became Freiman’s client, reported that a hacker was sending her messages every single day. One day he sent flowers to her office; other days, he sent nasty letters. One day the hacker even sent a letter of resignation to her employer which appeared to have come from her. When the victim contacted her local police, she was advised just to ignore it and change your phone. When she contacted the FBI, she was advised to just change her accounts. Over time, the woman moved from one place in Texas to another, changed her telephone number, home address, and email. After a period of prolonged harassment, the woman felt so overwhelmed that she emailed Freiman and said that she was considering committing suicide. (Roldan, 2019).
When you consider this incident based on the facts of the Amanda Todd case, there is a possibility that the client’s daughter was the intended target for harassment. Still, for some reason, the hacker’s attention gravitated towards the mother. It is also possible that the hacker intended to use the daughter as a conduit to access the mother’s information for blackmail but discovered that the mother was not wealthy.
In both the case of Amanda Todd and Megan Meier, the explicit threat was public humiliation and the potential consequences of the “information cascade” (Citron, 2014), the virulent way that information, regardless of its veracity, spreads in cyberspace. In the case of both, it is quite possible that the fear that the public humiliation would never end led to their suicides. While a threat of public humiliation is not an explicit or implicit threat of physical harm, it was not until the passage of the Violence Against Women Act, that a federal “rape shield law,” existed to prevent offenders from using victims’ past sexual conduct against them during a rape trial (“Violence Against Women Act,” 2019). As Tannenbaum states (Tannenbaum, 2015), people who want to defend rapists attempt to normalize their behavior by using the victim’s pre-rape behavior as the rationale for dismissing a crime. Girls become aware of this bias at an early age. Sadly, there is another parallel between cyberbullying and rape cases. All too often, the victim is blamed for the crime. Just as a person’s choice of clothing is not an invitation for assault, neither is a person’s presence on a social media platform or website. The responsibility for the crime rests squarely on the shoulders of the perpetrator.
A person from any demographic can be cyberbullied, cyber-harassed, or cyberstalked regardless, and they should not have to prove ‘credible threat’ and “reasonable fear” if there is clear evidence of acts that are commonly acknowledged as bullying, harassment and/or stalking. The U.S. Criminal Code should be clear and specific all forms of cybercrime.
Note: “The Story of A Girl Named Sophia” was not included in the original position paper. It is included here because it is base a a true incident.
18 U.S. Code § 2261A – Stalking. (n.d.). Retrieved October 20, 2019, from LII / Legal Information Institute website: https://www.law.cornell.edu/uscode/text/18/2261A
18 U.S. Code § 2261—Interstate domestic violence. (n.d.). Retrieved October 20, 2019, from LII / Legal Information Institute website: https://www.law.cornell.edu/uscode/text/18/2261
Blanch, J. L., & Hsu, W. L. (2016). An introduction to violent crime on the Internet. United States Attorneys’ Bulletin, 64(3), 2–12.
Carter, T. B. (2015). Local, State, and Federal Responses to Stalking: Are Anti-Stalking Laws Effective. William & Mary Journal of Women and the Law, 22(2), 333–392. Retrieved from https://heinonline.org/HOL/P?h=hein.journals/wmjwl22&i=357
Citron, D. K. (2014). Hate Crimes in Cyberspace. Retrieved from https://books.google.com/books?id=hnRyBAAAQBAJ
Copes, H., & Forsyth, C. J. (2014). Cyberbullying. In Encyclopedia of social deviance (pp. 83–85, 164,`65). Retrieved from http://www.library.yorku.ca/e/resolver/id/2538704
Definition of BULLYING. (n.d.). Retrieved October 20, 2019, from https://www.merriam-webster.com/dictionary/bullying
Gaus, A. (2012). Trolling Attacks and the Need for New Approaches to Privacy Torts Comment. University of San Francisco Law Review, 47(2), 353–376. Retrieved from https://heinonline.org/HOL/P?h=hein.journals/usflr47&i=365
Harassment. (2019). In Wikipedia. Retrieved from https://en.wikipedia.org/w/index.php?title=Harassment&oldid=921933606
Holt, T. J., Bossler, A. M., & Seigfried-Spellar, K. C. (2018). Cybercrime and digital forensics: An introduction (2nd Edition). Retrieved from https://0-ebookcentral.proquest.com.cataleg.uoc.edu/lib/bibliouocsp-ebooks/detail.action?docID=5107356
Megan’s Story. (n.d.). Retrieved September 30, 2019, from Megan Meier Foundation website: https://meganmeierfoundation.org/megans-story
Preventing Stalking |Violence Prevention|Injury Center|CDC. (2019, February 5). Retrieved October 20, 2019, from https://www.cdc.gov/violenceprevention/datasources/nisvs/preventingstalking.html
Roldan, J. (2019). Cybercrime [Prime video (online streaming)]. United States: Creative Realm Entertainment.
Seralathan, A. M. (2016). Making the Time Fit the Crime: Clearly Defining Online Harassment Crimes and Providing Incentives for Investigating Online Threats in the Digital Age Notes. Brooklyn Journal of International Law, 42(1), 425–480. Retrieved from https://heinonline.org/HOL/P?h=hein.journals/bjil42&i=433
Stalking. (2019). In Wikipedia. Retrieved from https://en.wikipedia.org/w/index.php?title=Stalking&oldid=921789504
Stalking Amanda Todd: The Man in the Shadows – The Fifth Estate. (n.d.). Retrieved from https://www.youtube.com/watch?time_continue=2449&v=GRidpO7kUO0
Subjective and objective standard of reasonableness. (2019). In Wikipedia. Retrieved from https://en.wikipedia.org/w/index.php?title=Subjective_and_objective_standard_of_reasonableness&oldid=889711363
Tannenbaum, L. (2015). I Am Not a Slut: Slut-shaming in the Age of the Internet. Paw Prints.
Violence Against Women Act. (2019). In Wikipedia. Retrieved from https://en.wikipedia.org/w/index.php?title=Violence_Against_Women_Act&oldid=918101588
Who was Atatiana Jefferson? Woman killed by Fort Worth police officer in her home. (n.d.). Retrieved December 8, 2019, from WFAA website: https://www.wfaa.com/article/news/crime/atatiana-jefferson-killed-by-fort-worth-police-officer-in-her-home/287-ec24b710-4f01-46b6-83fb-9ec63fd658bd
Wilkinson, M. (2016). Cyber Misbehavior: Introduction. United States Attorneys’ Bulletin, (3), 1–1. Retrieved from https://heinonline.org/HOL/P?h=hein.journals/usab64&i=126
Yadin, G. (2017). Virtual Reality Exceptionalism. Vanderbilt Journal of Entertainment & Technology Law, 20(3), 839–880. Retrieved from https://heinonline.org/HOL/P?h=hein.journals/vanep20&i=875
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