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New Technologies, New Problems, New Laws

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New Technologies, New Problems, New Laws COMMENTARY New Technologies, New Problems, New Laws Patricia R. Recupero, JD, MD Forensic psychiatrists in the 21st century can expect to encounter technology-related social problems for which existing legal remedies are limited. In addition to the inadequate protection of adolescents using social media as outlined by Costello et al., current laws are often poorly suited to remedy problems such as cyberharassment, sexting among minors, and the publication of threatening or harmful communications online. Throughout history, technological developments have often preceded the introduction of new laws or the careful revision of existing laws. This pattern is evident in many of the newer social problems that involve technology, including cyberbullying, online impersonation, and revenge porn. As specialists working at the intersection of human behavior and the law, forensic psychiatrists are uniquely situated to help legal professionals and others understand the impact of internet-related problematic behaviors on victims and, perhaps, to assist in the development of new legal remedies that are better tailored to our increasingly digital society. J Am Acad Psychiatry Law 44:322–27, 2016 Drs. Costello, McNiel, and Binder1 call attention to technology-related concerns with particular rele- a very important problem that has received surpris- vance to psychiatrists have severely limited legal rem- ingly little attention in peer-reviewed academic jour- edies, including sexting among minors,2,3 cyberbul- nals: the long-term risks posed to adolescents when lying,4 and cyberstalking.5 As Costello et al. suggest, social media and technology companies treat them as we as forensic psychiatrists may be able to play an if they were adults for the purposes of entering into important role in proposing solutions to these diffi- contracts. As Costello et al. note, the law in other culties and in helping legal professionals to under- areas does not permit minors to enter into binding stand the nuanced and complicated psychiatric as- contracts without the consent of a parent or legal pects of technology-related social problems. guardian. However, in the internet era, poor deci- Other commentators have noted the law’s failure to sions made by adolescents who have not yet reached match the rapid pace of technological developments,6 a developmental maturity may have lasting repercus- phenomenon that is by no means new. In fact, some of sions for the remainder of these young people’s lives. the laws we have today were created in response to prob- As technology and social media continue to play in- lems that arose in the wake of new technologies and the creasingly central roles in our lives, the sizes of our social changes they facilitated. For example, copyright future digital footprints are expanding beyond what laws developed in part as a response to problems that we might have anticipated a mere five years ago. arose after the introduction of the printing press.6 Sim- Different aspects of information and communica- ilarly, many of today’s labor laws are rooted in social tion technology in the past few decades have led to changes tied to technologies introduced during the in- problems that existing laws have been poorly dustrial revolution. Numerous forms of health care in- equipped to handle. In addition to the problems formation technology, such as the proliferation of mo- discussed by Costello and colleagues, many other bile health applications for smartphones and tablet 7 Dr. Recupero is Clinical Professor of Psychiatry, Alpert Medical School of computers (mHealth apps), also demonstrate this pat- Brown University, Senior Vice President, Education & Training, Care tern of a new technology preceding calls for some type New England Health System, Address correspondence to: Patricia Recu- pero, MD, Care New England Health System, 345 Blackstone Boulevard, of legal or regulatory response to address problems that Providence, RI 02906. E-mail: [email protected]. were not anticipated before such technology became Disclosures of financial or other potential conflicts of interest: None. available. 322 The Journal of the American Academy of Psychiatry and the Law Recupero Cyberbullying local laws.”9 Drew was initially convicted, but she appealed, and a federal judge overturned her The confusing legal proceedings and public outcry 13 that followed the suicide of 13-year-old Megan conviction. Meier in 20068 are illustrative of the problems that Following the Megan Meier case, a number of forensic psychiatrists may encounter as the law strug- jurisdictions introduced new laws or amended exist- gles to catch up with technology. In that case, two ing laws to facilitate the prosecution of cyberbullying perpetrators and others who engage in internet-based adult women and the teenage daughter of one of the 8 women (a classmate of Meier’s) had created a false harassment. The problem is by no means resolved or profile for a teenage boy, calling him “Josh Evans,” settled in the law, however. Cyberharassment law is and used his profile and fictional identity to commu- still a very new, rapidly changing development in our nicate with Meier through the social networking society. website MySpace.9 Meier and “Josh” flirted for sev- First Amendment Challenges eral weeks, until the women using the account had “Josh” send Meier a message stating that “the world Similar difficulties and controversy surrounded would be a better place without you.”9 After re- the prosecution of William Francis Melchert- sponding “You’re the kind of boy a girl would kill Dinkel, a former nurse who sought out depressed, herself over,” Megan Meier hanged herself in her suicidal persons online through suicide chat forums, bedroom closet and was found later by her mother.8 baited them, engaged them in suicide pacts, and The case illustrates the devastating emotional impact coached them in suicide methods with high lethal- that cyberharassment can have on its victims.10 ity.14,15 Although he was a middle-aged man, After the suicide, Meier’s parents learned that Melchert-Dinkel posed as a suicidal young female “Josh” was a false identity created by an adult, ini- nurse online to gain the trust of those with whom he tially believed to be 47-year-old Lori Drew, the chatted.16 He typically encouraged these persons to mother of one of Meier’s classmates. Drew was aware kill themselves via hanging and asked to watch them of Megan’s history of depression.11 When details of via webcam during their suicides. Commentators the case were made public, the ensuing controversy had expressed doubts that he could be held account- illustrated how poorly equipped the current laws able for the suicides of persons he had chatted with were to address cases like this: online, citing the likelihood of First Amendment challenges.17,18 That an adult would plot such a cruel hoax against a 13- year-old girl has drawn outraged phone calls, e-mail mes- Initially, Melchert-Dinkel was charged and con- sages and blog posts from around the world. Many people victed on two counts of violating a Minnesota statute expressed anger because St. Charles County officials did not that made it a crime to advise, encourage, or assist charge Ms. Drew with a crime. But a St. Charles County 19 Sheriff’s Department spokesman, Lt. Craig McGuire, said another in completing suicide, and a state appellate that what Ms. Drew did ‘might’ve been rude, it might’ve court rejected his First Amendment challenge to the been immature, but it wasn’t illegal.’ In response to the statute.20 On appeal to the state Supreme Court, the events, the local Board of Aldermen on Wednesday unan- conviction was overturned on First Amendment imously passed a measure making Internet harassment a 21 misdemeanor punishable by up to a $500 fine and 90 days grounds ; however, the statute’s prohibition of “as- injail....St.Charles County’s prosecuting attorney, Jack sisting” in suicide was upheld.16 The court remanded Banas, said he was reviewing the case to determine whether the case for consideration of whether Melchert- anyone could be charged with a crime. State Representative Doug Funderburk, whose district includes Dardenne Prai- Dinkel’s actions could be considered “assisting” in rie, said he was looking into the feasibility of introducing the victims’ suicides. Adolescents may be more vul- legislation to tighten restrictions against online harassment 11 nerable to internet suicide suggestion or support of and fraud. suicide and, conversely, may not be as sensitive to the Ultimately, Drew was prosecuted, not for harass- impact of their posts on other adolescents. ment, but for three counts of misdemeanor com- The existence of prosuicide15,18 and proan- puter fraud, for having violated the terms of the orexia22 communities on the Internet has also gener- MySpace service agreement. The case12 was argued ated controversy over potential conflicts between the in federal court in California, rather than in Drew’s First Amendment and protecting vulnerable persons home state, because “law enforcement officials in from harmful speech. While the right to free speech is Missouri determined Ms. Drew had broken no not absolute, there is still a considerable ethics debate Volume 44, Number 3, 2016 323 Commentary over which forms of speech on the Internet ought to represent themselves online to woo a virtual lover be protected and which should be restricted. The often must invest considerable time and effort into very novelty of questions raised by electronic com- the scam. Today, the perpetrator often creates a munication contributes to the legal and ethics con- whole social networking profile for the persona troversies about how best to respond to them: across multiple platforms, collecting and using pho- Modern First Amendment law unequivocally denies First tographs (typically stolen from another person’s so- Amendment protection to child pornography. As a result, cial networking profile), and even amassing a net- legislators have become adept at regulating child pornogra- work of “friends” who post content and comment on phy without running afoul of the Constitution.
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