February 23, 2009
By: Veronica Rose, Principal Analyst
You asked for information on cyberstalking and legislation to address it.
Cyberstalking generally refers to the use of the Internet or other electronic communication to harass, threaten, or intimidate someone. Its prevalence is unknown, but it is a major problem that may presage more harmful behavior, including physical violence, according to a 1999 federal report.
Federal law criminalizes cyberstalking. And 46 states, including Connecticut, have adopted stalking or harassment laws that explicitly incorporate electronic forms of communication, according to the National Conference of State Legislatures (NCSL). Two Connecticut statutes are sufficiently broad to cover some cyberstalking conduct. One statute requires the perpetrator to make a threat to the victim and thus does not appear to apply to situations that do not involve a threat, even if the victim fears for his or her safety. Another appears to require the perpetrator to communicate directly with the victim (e.g., email) and thus does not appear to apply to other Internet postings and third-party harassment.
According to the 1999 federal report, (1) state cyberstalking laws should be crafted broadly to encompass the wide range of cyberstalking conduct, but must protect constitutionally protected speech, and (2) federal law should prohibit the “transmission of any communication in interstate or foreign commerce with intent to threaten or harass another person where such communication places another in reasonable fear of death or bodily injury.”
WHAT IS CYBERSTALKING?
Black's Law Dictionary (7th Ed., 1999) defines cyberstalking as “the act of threatening, harassing, or annoying someone through multiple email messages, as through the Internet, esp. with the intent of placing the recipient in fear that an illegal act or an injury will be inflicted on the recipient or a member of the recipient's family or household.”
Certain Internet capabilities facilitate cyberstalking by increasing the capacity to contact potential victims. These include chat rooms, bulletin boards, newsgroups, instant messaging, and other web communication devices. Also, the Internet provides a quick, inexpensive, and efficient means to collect and disseminate information to a large public audience. It can be used from anywhere in the world where there is Internet access to:
1. disseminate intimidating and threatening messages, including pictures, video, and audio;
2. transmit large volumes of junk mail or viruses in an attempt to damage data;
3. impersonate people and engage in inappropriate conduct in their name;
4. gather information for harassment purposes;
5. post false information about, and monitor and spy on, people;
6. encourage other people to track and harass people; and
7. engage in other harassing and intimidating behavior.
The prevalence of cyberstalking is not known as many cases go unreported or undetected because victims do not know that the behavior is criminal. And there is no state or national data bank of reported crimes. But “current trends and evidence suggests that cyberstalking is a serious problem that will grow in scope and complexity as more people take advantage of the Internet and other telecommunications technologies,” according to a 1999 federal report (Cyberstalking: A New Challenge for Law Enforcement and Industry). The report points out that:
the ease of use and non-confrontational, impersonal, and sometimes anonymous nature of Internet communications may remove disincentives to Cyberstalking. Put another way, whereas a potential stalker may be unwilling or unable to confront a victim in person or on the telephone, he or she may have little hesitation sending harassing or threatening electronic communications to a victim. Finally, as with physical stalking, online harassment and threats may be a prelude to more serious behavior, include physical violence (id., p. 3; see also Stalking and Domestic Violence: Report to Congress, 2001).
Cyberstalking poses several enforcement problems for law enforcement officials, including the following cited in the federal report:
1. the jurisdictional issues involved when a cyberstalker and victim may be located in different cities or states making it, in some cases, all but impossible for the local authority to investigate the incident;
2. the lack of adequate state and federal statutory authority; and
3. “the presence of services that provide anonymous communications over the Internet,” which allows cyberstalkers and other cybercriminals. . .to avoid accountability for their conduct (id. at p. 7; see also Stalking and Domestic Violence: Report to Congress, p. 6, 2001).
The report contains recommendations for law enforcement and criminal justice officials, the Internet and electronic communications industry, and state and federal legislatures, among others. With regard
to legislative issues, the report recommended that states review their stalking and other statutes to ensure they prohibit and provide appropriate punishment for cyberstalking.
As a result of the breadth of conduct potentially involved in stalking, antistalking statues need to be relatively broad to be effective. At the same time, because of that breadth and because stalking can involve expressive conduct and speech, antistalking statutes must be carefully formulated and enforced so as not to impinge on speech that is protected by the First Amendment. . . .Care must be taken in drafting Cyberstalking statutes to ensure that they are not so broad that they risk chilling constitutionally protected speech, such as political protections and other legitimate conduct. A carefully drafted statute can provide broad protections against Cyberstalking without running afoul of the First Amendment (id., at p.13).
With regard to federal law, the report noted that:
[w]hile most cyberstalking cases will fall within the jurisdiction of state and local authorities, there are instances—such as serious cyberharassment directed at a victim in another state or involving communications intended to encourage third parties to engage in harassment or threats—where state law is inadequate or where state or local agencies do not have the expertise or the resources to investigate and/or prosecute a sophisticated cyberstalking (id., at p. 12).
The report recommended that federal law be amended to (1) address gaps in existing law where the conduct involves interstate or foreign commerce with intent to threaten or harass another person where such communication places another in reasonable fear of death or bodily injury, (2) include enhanced penalties where the victim is a minor, and (3) make it easier to track down stalkers and other criminals in cyberspace while maintaining safeguards for privacy. The law should be technology neutral and apply to all forms of communication technology, to ensure that it does not become quickly outdated (id., at p. 14).
Three major federal laws apply to cyberstalking: the Interstate Communications Act; the Telephone Harassment Act, as amended by the 2000 Violence Against Women Act (VAWA); and the Interstate Stalking and Prevention Act, as amended by VAWA. A fourth federal law protects children against on-line stalkers.
The Interstate Communications Act
Under the Interstate Communications Act, it is a crime to transmit in interstate commerce any communication (e.g., by telephone, email, or beeper) containing a threat to injure anyone (18 USC § 875(c)). One limitation of this law is that many cyberstalking behaviors do not involve threats.
Violence Against Women Act (VAWA)
Certain forms of cyberstalking may be prosecuted under the 1934 Telephone Harassment Act, as amended by the 2006 VAWA. This law makes it a crime to anonymously and knowingly use a telephone or Internet to transmit in interstate or foreign commerce any message “to annoy, abuse, harass, or threaten a person” (47 USC §§ 223 & 223(a)(1)(C)).
A major limitation of this law is that it applies only to direct communications (e.g., email) between the stalker and victim. It does not appear to cover messages posted on bulletin boards or in chat rooms encouraging others to harass someone.
The Interstate Stalking and Prevention Act
The 1996 Interstate Stalking and Prevention Act, as amended by VAWA, makes it a crime for anyone who travels in interstate or foreign commerce to use the mail, any interactive computer service, or any interstate or foreign commerce facility to engage in a course of conduct that causes substantial emotional distress to a person or causes the person or a relative to fear for his or her live or physical safety (18 USC § 2261A).
Soliciting Minors for Sexual Activities
A fourth federal law makes it a federal crime to use any means of interstate or foreign commerce (such as a telephone line or the Internet) to communicate with anyone with intent to solicit or entice a child under age 16 into unlawful sexual activity (18 USC § 2425).
All 50 states and the District of Columbia have enacted stalking and harassment laws. And 46 states, including Connecticut, explicitly include electronic forms of communication within stalking or harassment laws, according to an NCSL report (State Electronic Harassment or “Cyberstalking” Laws, last updated February 11, 2009; (http://www.ncsl.org/programs/lis/cip/stalk99.htm). The laws vary in terms of the conduct criminalized, standards that may trigger prosecution, penalties for violations, and protections afforded victims, among other things. Most apply to crimes of intimidation and harassment using email, pagers and cell phones, but not to messages and digital images posted on websites.
At least six states have adopted separate statutes specifically targeting cyberstalking. These are Illinois (720 Ill. Comp. Stat. Ann. § 5/12-7.5); Louisiana (La. Rev. Stat. § 14:40.3); Mississippi (Miss. Code § 97-45-15); North Carolina (N.C. Gen. Stat. §§ 14-196, 14-196.3); Rhode Island (R.I. Gen. Laws § 11-52-4.2,); and Washington (Wash. Rev. Code Ann § 9.61.260). Louisiana's law, for example, applies to the “transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature, transmitted in whole or in part by wire, radio, computer, electromagnetic, photoelectric, or photo-optical system.”
Typically, laws targeting stalking or harassment (on-line or off-line) require that a perpetrator engage in the activity (1) on more than one occasion and (2) with intent to harass or cause a victim to fear for his or her life or safety. Many statutes require that the perpetrator make a credible or actual threat of violence (e.g., Alabama (Ala. Code § 13A-6-92(b)); Connecticut (CGS § 53a-182b); and Florida (Fla. Stat. Ann. § 836.10)). Some statutes have a “reasonable person standard.” In this case, the determining factor triggering prosecution is whether the perpetrator's conduct would cause a reasonable person to fear for his or her safety (e.g., Del. Code Ann. Tit. 11 § 1312a). Other variations apply.
Current Statutes. Connecticut incorporates computer network in two harassment statutes, which could be used to prosecute some cyberstalking conduct. Under CGS § 53a-182b, a person previously convicted of specified crimes is guilty of 1st degree harassment if with intent to harass, annoy, alarm or terrorize another, he or she threatens to kill or physically injure someone and communicates that threat by telephone, telegraph, mail, or computer network. The crime is a class D felony, punishable by one to five years in prison, a fine of up to $5,000, or both (CGS § 53a-182b). One limitation of this law with regard to cyberstalking is that applies only to threats.
Under CGS § 53a-183, a person is guilty of 2nd degree harassment when he or she, intending to harass, annoy, or alarm anyone, communicates with that person by telegraph, or mail, telephone, orcomputer network, among other means, in a manner likely to annoy or alarm. Second-degree harassment is a class C misdemeanor punishable by up to one three months imprisonment, a $500 fine, or both. One limitation of this law with regard to cyberstalking is that it appears to apply only to messages sent directly to the victim (i.e., email), not other Internet postings or third-party harassment.
Pending Legislation. Under Raised Bill 6357, currently before the Public Safety and Security Committee, a person is guilty of cyberstalking if (1) her or she, with intent to harass or intimidate someone, uses a computer, computer network or any other electronic device to (a) broadcast or publish the targeted person's picture, name, address or phone number without getting consent or (b) broadcast harassing, threatening or intimidating content about another person; and (2) such conduct places the other person in reasonable fear for such person's safety or the safety of a member of his or her immediate family. A violation is a class A misdemeanor, punishable by a prison term of of up to one year, a fine of up to $2,000, or both.