Cyberstalking legislation


Cyberstalking legislation

Cyberstalking and cyberbullying are relatively new phenomena, but that does not mean that crimes committed through the network are not punishable under legislation drafted for that purpose. Although there are oftentimes existing laws that prohibit stalking or harassment in a general sense, legislators sometimes believe that such laws are inadequate or do not go far enough, and thus bring forward new legislation to address this perceived shortcoming. In the United States, for example, nearly every state has laws that address cyberstalking, cyberbullying, or both.[1]

Contents

Issues at stake

Cyberbullying and cyberstalking, by their nature, define adversarial relationships. One person (or group), the provocateur, is exerting a view or opinion that the other person (or group), the target, finds offensive, hurtful, or damaging in some way. In a general sense, it would seem simple to legislate this type of behavior; slander and libel laws exist to tackle these situations. However, just as with slander and libel, it is important to balance the protection of freedom of speech of both parties with the need for protection of the target. Thus, something that may be deemed cyberbullying at first glance may, in fact, be more akin to something like parody or similar.

A 2006 National Crime Prevention Council survey found that some 40% of teens had experienced cyberbullying at some point in their lives, making the problem particularly widespread.[2]

Legislation by country

United States

"Cyberbullying" versus "cyberstalking"

In the US, in practice, there is little legislative difference between the concepts of "cyberbullying" and "cyberstalking." The primary distinction is one of age; if adults are involved, the act is usually termed cyberstalking, while among children it is usually referred to as cyberbullying. However, this distinction is one of semantics, and many laws treat bullying and stalking as much the same issue.

Freedom of speech issues

First Amendment concerns often arise when questionable speech is uttered or posted online. This is equally true when dealing with cyberbullying. Particularly in instances where there are no laws explicitly against cyberbullying, it is not uncommon for defendants to argue that their conduct amounts to an exercise of their freedom of speech.

The courts have variously come down on either side of that debate, even within the same state. For example, a student in California who was suspended from school based on cyberbullying claims took the school district to court, citing a breach of her First Amendment rights; the court agreed with the student and found the school district had overstepped its authority.[3] In another California case, in which a student was harassed after posting personal information online, the court found that threatening posts were not protected speech.[4]

That said, true threats are not considered to be protected speech.[5]

Organizations such as the American Civil Liberties Union have taken the view that cyberbullying is an overly expansive term, and that the First Amendment protects all speech, even the reprehensible; this protection would extend to the Internet.[6]

In general, such organizations argue that while the need for legislation against cyberbullying may exist, legislators must take a cautious, reasoned approach to enacting laws, and not rush into creating laws that would curtail speech too much.[7]

Internet free speech issues have certainly made their way through the court systems, even as far back as cases from the mid-90s. In the case of United States v. Baker, for example, an undergraduate at the University of Michigan was charged with crimes related to snuff stories he had posted on Internet newsgroups, stories that named one of his fellow students. After progressing through the courts, the charges against Baker were dismissed primarily on grounds that there was no evidence that Baker would actually act out the fantasies contained in those stories. This case is now considered a landmark in the realm of First Amendment issues on the Internet.[8]

The need for new laws

The focus on legislating cyberbullying and cyberstalking has largely come about as a result of the perceived inadequacy, generally by legislators and parents of bullying victims, of existing laws, whether those existing laws cover stalking, unauthorized use of computer resources, or the like.

For example, in the case of United States v. Lori Drew, in which Megan Meier had committed suicide after being bullied on MySpace, three of the four charges against the defendant (Drew) were actually in response to alleged violations of the Computer Fraud and Abuse Act, since specific statues against cyberbullying were not on the books. The jury eventually found Drew innocent of the charges (but guilty of a misdemeanor), a verdict that was later set aside by the judge. In this situation, legislators in Missouri, at the urging of the public and Meier's parents, passed "Megan's Law,"[9][10] primarily aimed at the crime of a person over 21 years of age bullying a person under 18 years of age.

In addition, prosecutors will sometimes use other legal avenues to prosecute offenders. In the case of Tyler Clementi, who killed himself after video of his homosexual encounter was broadcast on the Internet, prosecutors charged the defendants with invasion of privacy and computer crimes. Like the Meier case, the Clementi case spurred legislators (this time, in New Jersey) to pass a law specifically aimed at bullying, an "Anti-bullying Bill of Rights."[11]

While some laws are written such that the focus on cyberbullying is the set of acts that occur within a school, others are more general, targeting cyberbullying no matter where it occurs. In addition, some of these newly written laws (like one in Connecticut[12]) put more of an onus on the school system, mandating that the school's administration must intervene at the first sign of bullying.

Finally, it's not uncommon for cyberbullying to be coupled with more "traditional," in-person bullying. For Suicide of Phoebe Prince, this was exactly what had happened; students at her school had bullied her for months in school, and that harassment eventually moved online as well. As in Connecticut, New Jersey, and Missouri, the Prince case led to stricter anti-bullying legislation in Massachusetts.[13]

Legislation at the state level

Some U.S. states have begun to address the problem of cyberbullying. States that have passed legislation have done so generally in response to incidents within that state, to address what they believe to be shortcomings in federal laws, or to expand protection to victims above and beyond existing statutes.

California

On January 1, 2009, a law in California came into effect that allows schools to suspend or expel students who harass other students online. It also mandates that schools develop policies to address the problem.[14]

Florida

In 2008, Florida passed the "Jeffrey Johnston Stand Up For All Students Act," in response to the suicide of 15-year-old Jeffrey Johnston, who had suffered cyberbullying over a long period of time.[15] Somewhat unique among state laws regarding cyberbullying is a provision that withholds funding for schools who are not in compliance with the provision that they must inform parents of those involved in cyberbullying—both the bully and the target.

Massachusetts

In response to Phoebe Prince's suicide, as well as that of Carl Walker—both of whom had been bullied before taking their lives—the Massachusetts legislature in 2010 passed what advocates call one of the toughest anti-bullying laws in the nation. The law prohibits both online taunting and physical or emotional abuse, and mandates training for faculty and students at schools. It further mandates that school administrators inform parents of bulling that occurs within the schools themselves.[16]

Missouri

As noted previously, in 2008 Missouri revised its statutes on harassment to include harassment and stalking through electronic and telephonic communications and cyber-bullying after the suicide of Megan Meier.[17]

Texas

Texas enacted the Stalking by Electronic Communications Act in 2001.[18]

Washington

Washington takes the approach of putting the focus on cyberbullying prevention and response directly on the schools. The law also requires schools to create policies to address bullying in a general sense.[19][20]

Legislation at the federal level

Attempts at legislating cyberbullying have been tried at the federal level, primarily because the Commerce Clause of the US Constitution specifically provides that only the federal government can regulate commerce between the states; this includes electronic communication over the Internet. An early example, the Violence Against Women Act, passed in 2000, included cyberbullying in a part of interstate status on harassment.

Megan Meier Cyberbullying Prevention Act

In 2009, Rep. Linda Sánchez (D-CA) brought legislation titled the "Megan Meier Cyberbullying Prevention Act" before the U.S. House of Representatives. Her efforts were met with little enthusiasm, however, as Representatives from both the Republican and Democratic parties were concerned with the bill's impact on the freedom of speech.[21] One of the oft-cited arguments against the bill comes from talk radio, with the concern expressed being that the law would be used to silence political opponents who use the airwaves to espouse divergent viewpoints.[22][23] Another issue is that would make violation of the law a felony, rather than a misdemeanor as has been done in most states. Opponents of the bill argue that since the target of such legislation is nominally teenagers, this would put an undue burden on the prison system—since there are no long-term facilities for teenage offenders at the federal level. In addition, opponents call the proposed sentences (up to two years incarceration) excessive.[24]

While Sánchez' bill was discussed in committee, it has not passed that stage as of 2011.[25]

Tyler Clementi Higher Education Anti-Harassment Act

In early March 2011, U.S. Senator Frank Lautenberg (D-NJ) and Representative Rush D. Holt, Jr. (D-NJ-12) introduced the "Tyler Clementi Higher Education Anti-Harassment Act," which would mandate that colleges and universities that receive federal funding have policies in place to address harassment—including cyberbullying.[26][27] Universities would be required to address harassment that focuses on real or perceived race, color, national origin, sex, disability, sexual orientation, gender identity, or religion. The bill would also enable the U.S. Department of Education to provide training to institutes of higher education to prevent or address harassment.[28] Furthermore, the bill addresses not just student-to-student harassment, but also harassment of students by faculty or staff as well.

However, like the Megan Meier Cyberbullying Prevention Act, this bill also has its detractors. Opponents point out that harassment on college campuses is already prohibited under existing laws; furthermore, they point out that harassment based on sexual orientation is also covered under existing statutes.[29] In addition, as with the Sánchez bill, there are questions as to the free speech implications.[30]

International law

Convention on Cybercrime

International law emphasizes a supranational concept related to cybercrime. This is the Convention on Cybercrime, signed by the Council of Europe in Budapest on November 23, 2001 .

Universal Declaration of Human Rights

  • Article 5 of the Universal Declaration of Human Rights.

No one shall be subjected to torture or to cruel, inhuman or degrading treatment.

See also

References

  1. ^ http://www.ncsl.org/default.aspx?tabid=13495
  2. ^ http://www.usnews.com/education/blogs/on-education/2009/01/07/california-law-targets-cyberbullying
  3. ^ Kim, Victoria (14 December 2009). "Judge backs student's First Amendment rights". The Boston Globe. http://www.boston.com/news/nation/articles/2009/12/14/judge_rules_students_cruel_remarks_online_are_not_unconstitutional/. 
  4. ^ http://www.wired.com/threatlevel/2010/03/cyberbullying-not-protected/
  5. ^ http://arstechnica.com/old/content/2007/02/8903.ars
  6. ^ http://www.aclu.org/2008/01/16/free-speech-and-cyber-bullying
  7. ^ http://advocacy.globalvoicesonline.org/2010/01/12/first-amendment-and-cyber-bullying/
  8. ^ http://cyber.law.harvard.edu/ilaw/Speech/Baker1.html
  9. ^ http://www.moga.mo.gov/statutes/c500-599/5650000090.htm
  10. ^ http://www.pantagraph.com/news/article_6ade6d44-a162-54d1-9be0-88bebf181f6d.html
  11. ^ http://www.nj.com/news/index.ssf/2010/11/nj_assembly_passes_anti-bullyi.html
  12. ^ Keating, Christopher (23 March 2011). "Stronger Anti-Bullying Bill Approved By Committee". http://articles.courant.com/2011-03-23/news/hc-bully-bill-0324-20110323_1_cyberbullying-bill-mandates-new-department. Retrieved 24 April 2011. 
  13. ^ Bierman, Noah (4 May 2010). "Grieving family by his side, governor signs legislation". The Boston Globe. http://www.boston.com/news/local/massachusetts/articles/2010/05/04/grieving_family_by_his_side_governor_signs_legislation/. 
  14. ^ http://www.usnews.com/education/blogs/on-education/2009/01/07/california-law-targets-cyberbullying
  15. ^ http://abcnews.go.com/GMA/story?id=4774894&page=1
  16. ^ "Cyber Bullying Illegal: Mass. Governor Signs Landmark Anti-Bullying Law". CBS News. http://www.cbsnews.com/8301-504083_162-20004060-504083.html. 
  17. ^ Missouri Gov. Blunt Signs Bill Outlawing Cyberbullying
  18. ^ http://www.haltabuse.org/resources/laws/texas.shtml
  19. ^ http://apps.leg.wa.gov/billinfo/summary.aspx?year=2007&bill=5288
  20. ^ http://www.bullypolice.org/wa_law.html
  21. ^ http://www.wired.com/threatlevel/2009/09/cyberbullyingbill/
  22. ^ http://www.cato-at-liberty.org/federal-cyberbullying-law-worth-a-try/
  23. ^ http://www.talkfrontier.com/2009/06/30/hate-cyber-bullying-bills-could-threaten-talk-radio/
  24. ^ http://www.cato-at-liberty.org/federal-cyberbullying-law-worth-a-try/
  25. ^ http://thomas.loc.gov/cgi-bin/bdquery/z?d111:h.r.01966:
  26. ^ http://www.nj.com/gloucester-county/index.ssf/2011/03/federal_bill_will_help_combat.html
  27. ^ http://thomas.loc.gov/cgi-bin/bdquery/D?d112:2:./temp/~bd1uH9:@@@L&summ2=m&%7C/home/LegislativeData.php%7C
  28. ^ http://thomas.loc.gov/cgi-bin/bdquery/D?d112:2:./temp/~bd1uH9:@@@L&summ2=m&%7C/home/LegislativeData.php%7C
  29. ^ http://thefire.org/article/12945.html
  30. ^ http://www.nationalreview.com/phi-beta-cons/254164/tyler-clementi-act-and-threats-free-speech-david-french

External links


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