Stalking & Harassment in the Digital

5/31/2011

Stalking & Harassment in the Digital Age

Priscilla Grantham Sr. Research Counsel National Center for Justice and the Rule of Law

Overview of Presentation

• Dificulty defining cyberstalking & cyberharassment • Motivation • Tactics used by cyberstalkers and cyberharassers • Major federal statutes • Sampling of state laws • Examination of some common elements • Credible threat • Reasonable person •Course of conduct

I. Defining the problem…

• No universally accepted definitions /elements

• Cyberstalking, cyberharassment, and cyberbullying often used interchangeably

• Cyberstalkers & Cyberbullies harass their victims. NCJRL. org

1 5/31/2011

Cyber Harassment

Involves use of Internet, cell phones, other technology to send or post text or images intended to hurt or embarrass another person

Individual or group w/ no legit purpose uses e‐ communication to cause emotional distress to another

Cyberharassment

• Spreading gossip and rumors

• Sending / posting rude or nasty comments

Cyberstalking

• The use of the Internet, email, other electronic communication devices to stalk or harass another person

• Generally involves a course of conduct, not a solitary act.

2 5/31/2011

Cyberstalking

• Characterized by a perp relentlessly pursuing victim online.

• Purpose: to cause distress to the victim and derive power from that distress.

Cyberstalking has been characterized as an escalation of online harassment.

Classification may turn on perpetrator’s objectives and motives.

NCJRL. org

II. Motivation: Cyberharassment

• Defined by perpetrator’s desire to frighten or embarrass the victim

• Perpetrator often wants to teach victim a lesson

NCJRL. org

3 5/31/2011

Motivation: Cyberstalking

• Sexual harassment • Love / obsession • Hate & revenge vendettas • Power and ego issues

"It's actually obscene what you can find out about people on the Internet.“

‐‐ Liam Youens, the man who used Docusearch to locate and kill Amy Boyer on October 15, 1999.

Escalation of cyberstalking:

• 20 y/o N.H. woman murdered by former schoolmate.

• Obsession began in 8th grade; never met in person.

• Created website (up for 2.5 years) dedicated to woman: his hatred and jealousy, stalking habits, and plans to kill her.

4 5/31/2011

Amy Boyer

5 5/31/2011

6 5/31/2011

Cellphone Spyware programs – enable one to… • Listen in on victim’s conversations. • Intercept calls w/o victim knowing. • Read text messages and multi‐media messages. • Read Emails, Call logs. • Turn victim’s phone into a GPS tracking unit that you can track on a map. • Turn on the victim’s phone to bug a room.

7 5/31/2011

How do they get away with it……

8 5/31/2011

• Spoofing phone numbers is easy to do and can be used to trick the victim into answering a friendly or familiar phone number.

• It can also be used to call people and businesses and make it appear that the call is originating from the victim’s home or Cellular phone number.

• Spoofing is done with the use of a third party application.

• This is normally a website that offers a pay application where the user creates an account and prepays for a predetermined time period or number of uses.

9 5/31/2011

III. Technology: Delivery of Message Enhances Distribution of Communications:

• Efficient • Inexpensive • Instant • Anonymous • Content can be distributed to a wider, more public forum

Technology: Means of Stalking

• Repeated emails / E‐mail bombs

• Websites

• Impersonation of Victim

• Stalking by Proxy

IV. Tactics:

IP and Hidden Cameras

10 5/31/2011

•Just a few years ago the “Pinhole” surveillance camera was the at the cutting edge of stealth and concealment.

•They are small and easily hidden in just about anything.

Pinhole Camera

11 5/31/2011

Pinhole Camera in a pack of Cigarettes

Many Digital cameras and Cell Phone Cameras today record Exif data and Geo tagging information that can be viewed with free readily available software from the internet.

Victims who post these images in a public forum on the internet are susceptible to revealing to stalkers dates/ times and even specific locations of where they have been.

• They can be hardwired and plugged into an outlet for continuous and uninterrupted recording.

• They were only limited by the size of the storage device which was usually a VHS tape.

• Innovations saw the advent of wireless transmissions to remote storage with battery powered cameras.

• The limitations here were how far a radio signal could transmit the signal to the storage device. This distance usually was not very far and was limited by walls, buildings or other physical obstacles.

12 5/31/2011

•The draw backs of the older camera systems were corrected with the blending of Pinhole surveillance cameras and the internet.

•IP Cameras (Internet Protocol Cameras) allowed the viewing of cameras in live time from anywhere in the WORLD that had an internet connection.

IP camera set up you need: •High speed Internet service

•A NORMAL everyday CCTV Camera or a camera that’s “Network Ready”

•A Video Server

•Either the Video Server or the "Network Ready" Camera will provide a unique computer "address" known as an I.P. Address.

•ANY Computer can search and FIND the IP address, and connect to it. Depending on how you've configured the network, that computer can be next to the camera, or a million miles away, it really doesn't matter.

GPS • Man installed GPS in estranged wife’s car • State stalking statute contained langgguage: “under surveillance.” • Ct. ruled surveillance included electronic surveillance; • Husband’s act constituted stalking.

State v. Sullivan, 53 P.3d 1181 (Colo. Ct. App. 2002)

13 5/31/2011

Spyware

Malware is installed on Computers that collects information about users without their knowledge.

• Spyware collects various types of personal information, such as Internet surfing habits and sites been visited.

• Can install additional software and redirect Web Browser activity.

• Can change computer settings, resulting in slow connection speeds, different home pages, and/or loss of Internet or functionality of other programs.

• Spyware , aka Computer Monitoring Software, is commercially available on internet ‐‐ relatively inexpensive, usually less than $100.00.

• It is important to keep your Anti Virus definitions up to date.

• Even then, it is not always detected.

14 5/31/2011

• Keystrokes Typed ‐ Log all keystrokes typed by the user. • Email Forwarding ‐ Have all emails that a user sends and receives forwarded to your own private email account for later viewing. • Desktop Screenshots ‐ Log screenshots of the active window the remote user is working in and interacting with. Websites Visited ‐ Log all websites visited by the user. • Internet Connections ‐ Log all internet connections made and attempted by the user. • Windows Opened ‐ Log all windows opened and used by the user. • Chat Conversations Log both sides of all ICQ, MSN, Yahoo!, AOL, AIM messenger conversations!

15 5/31/2011

• Applications Ran ‐ Log all applications and programs executed by the remote user. • Print Jobs Executed ‐ Log all applications and programs executed by the remote user. File Usage ‐ Log all files and folders created and deleted by the remote user. • Documents Viewed ‐ Log all applications and programs executed by the remote user. • System Information ‐ Record and monitor system information on the remote machine: uptime, memory, ram, and more. You can also remotely shutdown, reboot, restart, logoff, or freeze the remote PC as well! ••SystemSystem Shutdowns and User changes ••EE‐mails typed ••PasswordsPasswords typed

Tactics

• Man & estranged wife living in same home • Husband installed tiny video camera in wall of her bedroom. • Ct. held that use of this technology constituted stalking under state law.

H.E.S. v. J.C.S., 815 A.2d 405 (N.J. 2003)

Email Stalkers can easily send threatening email or texts with push of a button i.e., “187.”

Stalker can create E‐mail bombs which automatically send messages at designated intervals

16 5/31/2011

Websites Cyberstalkers can create websites and post threatening/harassing statements.

Provides for constant harassment for all to view.

Impersonation of Victim

By posting inflammatory messages on message boards, Web pages, and chat rooms, cyberstalker provokes others to “flame” the vitiictim.

Victim may be accused of improper conduct and banned from groups.

Stalking by Proxy Inciting “innocent” 3d parties to stalk

Man impersonated victim in chat rooms:

•Posted her phone #, address, messages re: rape fifantasies.

•On at least 6 occasions, men knocked on her door saying they wanted to rape her.

17 5/31/2011

Cyberstalking:

• Kansas City man dated woman 6 weeks • For 2.5 years he posted online sexual ads w/ her name & address • Up to 30 men per day came to her home believing they would receive sexual favors • Pleaded guilty to cyberstalking ––22 years

Proxy Stalking

Sent hate emails in victim’s name (w/ address and phone #) to groups of Satanists, drug users and pornographers, resulting in threat on victim’s life.

V. Laws Aimed at Cyberstalking

No federal statute directed specifically at cyberstalking,

Several existing statutes, each with limited reach, can address cyberstalking.

18 5/31/2011

18 U.S.C. 875(c) Transmitting threats

• Prohibits transmission of communication in interstate / foreign commerce containing a threat to injure another • Limited to communication of actual threats • Would not apply if victim was merely harassed or annoyed • May only apply to direct contact w/ victim (i.e.. not Internet postings or stalking by proxy.)

Threat? U.S. v. Alkhabaz, 104 F.3d 1492 (6th Cir. 1997)

• College student emailed friend sadistic stories about raping and killing classmate “Jane Doe.”

• Jane Doe learned of contents of writings

• 6th Cir. – Emails NOT communications containing threat; “attempts to foster a friendship based on shared sexual fantasies.”

47 U.S.C. 223 Fed. Telephone Harassment Statute

2006 ––CongressCongress expanded definition of “telecommunications device” to include email communications.

• Perpetrator must remain anonymous • Covers both harassment and threats • Applies only to direct communications

19 5/31/2011

18 U.S.C. 2261A Fed. Interstate Stalking and Prevention Act • Stalker no longer has to physically cross state lines • Can travel in interstate or foreign commerce (Is this travel via Internet?) • Intentionally engage in a course of conduct • That causes substantial emotional distress to victim, or places victim in rsble fear of death or serious bodily injury

18 U.S.C. 2425 Transmitting Information about a Minor Prohibits stalking of minors for sexual purposes Criminalizes use of interstate or foreign commerce, including Internet:

• to knowingly communicate

• w/ intent to solicit or entice minor under 16

• Into engaging in unlawful sexual activity

State Laws

Complicated maze of state laws w/ varying definitions, protections, and penalties.

Some states have enacted laws specifically addressing cyberstalking and cyberharassment

Some states have amended existing stalking and harassment laws to include electronic communications.

20 5/31/2011

Statutes may differ on factors re: Credible threat Direct communication Pattern of conduct / series of acts Directed at a specific person Physical proximity

State laws re: cyberstalking Most stalking laws require credible threat of violence against victim Many include threats against immediate filfamily Others require only that alleged stalker’s course of conduct constitute an implied threat

California: Tort of stalking • D. engaged in pattern of conduct • Intent to follow, alarm, or harass plaintiff • P. rsbly feared for her (or immediate family member’s) safety • D made a credible threat • P. asked D. to stop

21 5/31/2011

California Crime of Stalking • Willfully, maliciously, repeatedly follows, or • Willfully and maliciously harasses • Credible threat • Intent to place person in rsble fear for his or her safety (or immed. family)

California: definitions Harass: • Knowing and willful • Course of conduct • Directed at specific person • Seriously alarms, annoys, torments or terrorizes the person • Serves no legitimate purpose

Credible threat:

• Verbal or written threat (inc. electronically), or • Threat implied by a pattern of conduct, or • Combination of communications and conduct • Made with intent to place that person in fear for his her/safety (or that of his/her family) • Made with apparent ability to carry out threat • Not necessary to prove D. had intent to actually carry out the threat.

22 5/31/2011

• Under Ca. Penal Code, (§ 422) harassment is a misdemeanor. • Covers communications via e‐ communication devices • Also iildncludes proviiision (§ 653.2) for harassing by proxy

California: “Proxy harassing”

• Intent to place another in rsble fear for his/her/family’s safety • Via e‐communication device • w/out consent of other person • For purpose of causing unwanted physical contact, injury, harassment by 3d party • Distributes, publishes, emails, hyperlinks, makes available for downloading, • P.I.I., image, or msg of harassing nature • Likely to incite / produce the unlawful action

Unlawful Computerized Communications • W/ purpose to frighten, intimidate, threaten, abuse, or harass another,

• Sends message to the person via email or computerized communication system, (or w/ the rsble expectation that the person will receive message) and

• Message contains threat to cause physical injury or damage property Ark. Code Sec. 5‐41‐108 Wis. Stat. Sec. 947‐0125

23 5/31/2011

Wis. – Stalking (felony) • Course of conduct dir. at specific individual

• Rsble person would suffer serious emot. distress or fear bodily injury or death to self/family member

• Victim does suffer serious emot. distress or fears bodily injury/death to self/family member

• Includes provision for Stalking by Proxy Wis. Stat. 940.32

Wis. – Harassment (misdemeanor)

• Course of conduct which harasses or intimidates the victim

• Accompanied by credible threat

• Threat places victim in rsble fear of death/great bodily harm

Conn. - Stalking (2nd degree) Intent to cause another to fear for physical safety,

Willfully and reppyeatedly follows or lies in wait for other person, and

Causes that person to reasonably fear for physical safety. Sec. 53a‐181d Class A misdemeanor

24 5/31/2011

Conn. - Stalking (1st degree) Class D felony if: Previous stalking conviction, or

Conduct violates a court order in effect at time of the offense, or

Other person is under 16 Sec. 53a‐181c

Conn. - Harassment (1st degree)

W/ intent to harass, annoy, alarm or terrorize, Threatens to kill or physically injure that person or any other person, and Communicates such threat by … computer network, In a manner likely to cause annoyance or alarm, and has been convicted of a felony Sec. 53a‐182b Class D felony

Conn. – Harassment (2nd degree)

• W/ intent to harass, annoy or alarm another,

• Communicates w/ person by…computer network,

• In a manner likely to cause annoyance or alarm

Sec. 53a-183 Class C misdemeanor.

25 5/31/2011

Note: Depending on jurisdiction, the same acts could be prosecuted under laws prohibiting stalking, cyberstalking, harassment, unlawful use of computerized communication system, harassing by computer, transmitting information about a minor…

Harassment Statutes

• Arise out of old laws prohibiting obscene telephone calls

• Generally specific‐intent crimes that require proof prohibited conduct was intended to cause emotional distress

NCJRL. org

Stalking Statutes

• Generally “aggravated” harassment statutes • Reach behavior that includes credible threats • Are moving towards reaching behavior that causes emotional distress

NCJRL. org

26 5/31/2011

State v. Ellison 900 N.E. 2d 228 (Ohio Ct. App. 2008)

• Two teen girls, Ellison & Gerhard, who were friends until 7th Grade • Ellison’s bhbrother accused GhdGerhard of molesting him • Dep’t of Family Services investigates ‐ ‐ no charges filed due to a lack of evidence

NCJRL. org

State v. Ellison

• Ellison posts pic. of Gerhard on MySpace w/ caption “Molested a little boy.” • Ellison’s MySpace profile states she hates Gerhard • This information is publicly viewable

NCJRL. org

27 5/31/2011

State v. Ellison • Gerhard learns about posting ‐ ‐ complains to school officials

• Ellison voluntarily removes posting

• Ellison is prosecuted under Ohio’s Telecommunications Act: using telecommunications device to “abuse, threaten, or harass” someone

NCJRL. org

State v. Ellison • At trial Ellison testified: . she believed Gerhard molested her brother . made the posting to warn others

• Gerhard testified Ellison never contacted her online

• Ellison was convicted

NCJRL. org

State v. Ellison Ellison’s conviction overturned on appeal on two grounds:

. Ellison could have had a legitimate purpose in posting the photo

. No proof she intended to cause emotional distress

NCJRL. org

28 5/31/2011

A.B. v. State 885 N.E. 2d 1223 (Ind. 2008) Student, R.B., created fake MySpace profile of Jr. high principal •Profile accessible to 26 of R.B.’s friends. •Student A.B. accessed profile & posted vulgar rant re: principal’s enforcement of school policies.

NCJRL. org

A.B. v. State • A.B. created group page accessible to general public & reposted rant • A.B.’s rant reported to the principal • He investigated – discovered profile (although he could not see its comments) and group page

NCJRL. org

A.B. v. State A.B. was found to be delinquent at Juvenile Court Hearing •Finding based on fact that her actions would have been criminal harassment if prosecuted as an adult

NCJRL. org

29 5/31/2011

A.B. v. State

• The Indiana Ct. of Appeals: A.B.’s speech protected by 1st Amend.

• On appeal Indiana Supreme Court ruled more narrowly

NCJRL. org

A.B. v. State The Indiana Supreme Court looked at the 2 communications separately: •Rant on the private profile ‐‐ court found ABA.B. did not have subjective belief her comments would reach and harass principal •Public rant ‐ ‐ court found A.B.’s speech had legit. purpose

NCJRL. org

Proving Intent

• Where was communication directed?

• Was communication or type of communication repeated?

NCJRL. org

30 5/31/2011

Harassment & Stalking Narrow Constructions

• Prohibition against “annoying” speech • Defense of legitimate purpose

NCJRL. org

Criminal Defamation • Approximately half of states have a criminal defamation statute • Two types: . Criminalize communications likely to breach the peace . Criminalize communications tending to impeach one’s reputation

NCJRL. org

Criminal Defamation Both types require: • Publication of information • That is false

NCJRL. org

31 5/31/2011

False Information?

NCJRL. org

Actual Malice? Who is a public figure? a public official? a private citizen? • Principals? • Teachers? • Bloggers? • Everyone on social networks?

NCJRL. org

Issues of Public Concern

In Milkovich v. Lorain Journal Co., 497 U.S. 1 (1985) the Supreme Court ruled that punitive damages could not be awarded in any case involving public concern unless a plaintiff was able to prove actual malice

NCJRL. org

32 5/31/2011

Lori Drew

NCJRL. org

Lori Drew • Drew created MySpace profile purporting to be 16 y/o Josh Evans • Used profile to learn about 13 y/o Megan Meier’s friendship with her daughter • “Josh” flirted with Megan – built relationship with her

NCJRL. org

• Josh broke up with Megan telling her the world would be a better place without her in it

• Megan killed herself the day that message was sent

NCJRL. org

33 5/31/2011

Computer Fraud & Abuse Act

Originally passed to prohibit hacking specifically hacking into government computers.

CFAA makes unauthorized computer use a crime.

NCJRL. org

Two Theories:

• Unauthorized use of a computer w/ tortious intent to cause emotional distress • Unauthorized use of a computer through violation of MySpace’s TOS

NCJRL. org

Void‐for‐Vagueness

• Fails to give sufficient notice conduct is illegal

• No guidelines exist for enforcement of statute

NCJRL. org

34 5/31/2011

Void-for-Vagueness “Obvious examples of such breadth would include: 1) the lonely‐heart who submits intentionally inaccurate data about his or her age, height, and/or physical appearance, . . . 2) the student who posts candid ppgphotographs of classmates without their permission, . . . 3) the exasperated parent who sends out a group message to neighborhood friends entreating them to purchase his or her daughter’s girl scout cookies.”

NCJRL. org

Void-for Vagueness “[O]ne need not consider hypotheticals to demonstrate the problem. In this case, Megan . . . had her own profile on MyypSpace, which was in clear violation of the [requirement] that users be ‘14 years of age or older.’ No one would seriously suggest that Megan’s conduct was criminal or should be subject to criminal prosecution.” NCJRL. org

Recap:

1. Difficulties in defining behaviors 2. Role of technology 3. Major federal statutes 4. Sampling of state laws

35 5/31/2011

Thank You Priscilla M. Grantham Sr. Research Counsel National Center for Justice and the Rule of Law www.ncsl.org www.ncjrl.org [email protected]