Cyber-abuse: Legal Issues

Susan W. Brenner

NCR Distinguished Professor of Law & Technology

University of Dayton School of Law

OverviewCyber-abuse:

Harassment

Stalking

Threats

Defamation

Invasion of privacy

Imposture

[Cyberbullying]

Harassment, Stalking & Threats

HarassmentCyber-harassment:

Origins in phone harassment (annoying &/or obscene calls)

With “intent to harass, annoy or alarm” another . . . but with no intent of legitimate communication uses a computer to communicate with him/her (Indiana Code 35-42-2-2)

State v. Ellison (Ohio App. 2008)

Comment on MySpace said Gerhard molested her brother + similar comment on friend’s MySpace page

Gerhard saw comments, Ellison prosecuted

Held: no harassment

Not communicated to Gerhard

Legitimate purpose = no purpose to harass

StalkingCyber-stalking:

Crime of real-world stalking emerged in 1980s

Follow/contact another without consent for the purpose or harassing or intimidating the person

Harassing/intimidating = emotional distress b/c fear for safety

Contact = personal, phone, online

Huggins v. Boyd (Ga. App. 2010):

Former student pursued professor from SC to Georgia

Emails to Boyd, supervisors, faculty, friends (1 was 65 pages)

No overt threats

Mid-1990s – 2010 . . .

ThreatsCrime: “true threat” to inflict death/serious bodily injury

Harm: emotional distress and/or inchoate crime . . . ?

18 USC 875(c): transmit threat to injury person in interstate or foreign commerce

U.S. v. Alkhabaz (6th Cir. 1997)

Posted violent, sadistic sexual fantasies online about woman in his classes who also lived in his dorm

She saw them, he was prosecuted under 875(c)

Court: no “threat”

Fantasies

Not communicated to her

Defamation, Invasion of Privacy & Imposture

DefamationCrime: “malicious publication in any manner . . . of anything which tends . . . to expose any person to hatred, contempt or ridicule” La. Stat. 14:47

David Dabbert, Waukesha, Wisconsin (2000):

Boss fired him so he posted an add in her name on the “Sex on the Side” website:

Her name, email, phone, description, desire for “someone to make me their slut for

the night” while “hubby” was gone

None of it was true

“Email offers poured in”

Prosecuted for defamation

Invasion of PrivacyCrime: Knowing he is not entitled to do so and

When reasonable person would know another may engage in sexual acts

observes the person without their consent

under circumstances in which a reasonable person would not expect to be observed

NJ Stat. 2C:14-9

Tyler Clementi

Cf. Robert Steinbuch

ImpostureCrime: “Impersonates another . . . for the purpose of obtaining a benefit for himself . . . “ N.J. Stat. 2C:21-17

Indiana case:

Fellow who works in a church creates Facebook pages using the names of sisters (16 and 23) and uses pages to have online sex with men

Sisters’ minister finds pages, asks about them, they’re horrified

Prosecuted for cyberstalking/harassment . . .

Cyberbullying

High-Profile CasesMegan Meier

(October 2006): suicide

Phoebe Prince

(January 2010): suicide

Tyler Clementi

(September 2010): suicide

Cyberbullying & Suicide

Suicide is not a crime

Model Penal Code 210.5

Cause suicide = homicide IF

Done purposely

W/force, duress, deception

In none of these cases did bullies INTEND to cause the person to commit suicide

Even if they had, proving causation would be difficult

Cyberbullying & Prosecution

Harassment (electronic)

Stalking:

Electronic +

Emotional distress

Defamation

Threats

Invasion of privacy (?)

Imposture (?)

Cyberbullying: A New Crime?

Each “crime” targets a separate and distinct “harm”

Murder = taking life

Theft = taking property

No need for a cyberbullying crime IF existing laws

Are adequate to address the problem

Can be made adequate to address it

Virtue of relying on established laws is that we know how to apply them

CYB3RCRIM3

susanwbrenner@yahoo.com