What’s Illegal and what’s not when it comes to cyber-harassment.

    Originally Posted Aug 17, 2014

    What’s Illegal and what’s not when it comes to cyber-harassment.

     

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    R.I.S.E. & STAND supports many different causes. It is clear on our website and social sites that we are an organization against all acts of cruelty. Yet, we get more emails and calls from people under attack by cyber-bullies and stalkers than anything else.

    By just scrolling through our emails we receive daily, it is clear to us that cyber-harassment is out of control and plaguing millions of people across the globe of all ages and races.

    The one question we are asked at least once or twice every day is, “Is what’s happening to me illegal?”

    However, this can be hard to answer at times. Our team studies cyber laws for various states and countries all the time but we have found out is that no laws you find posted are simple black and white. Unfortunately, there is a lot of grey fine print, so finely printed most often its non-existent and leaving people feeling falsely protected until they actually need help.

    First, every state is different. Every country is different. That is enough right there to make it frustrating when trying to help someone figure out what is tolerable or illegal in their area.

    I can just hear some of you saying, “How about asking your local law enforcement or your mayor what your cyber-harassment laws are?”

    You might be shocked to find out they do not even know what the laws are.  Stay tuned in the future when we bring you a video of officers around the US admitting they have no clue how to handle cyber-harassment and bullying.

    With that being said we would love to share with you some interesting things we have found out over the last few months by calling cyber crime units across the US and while taking our courses in Networking theory and application, cyber security, and online conduct. You are free to email us and ask us how you to can take these courses.

    Even better, we wrote down a list of our most asked questions and asked lawyers to see what they had to say also.

    1.  Is posting someone’s full name online without his or her consent illegal? Not if the person is over 18. The courts do not see names as something “private”. We asked several lawyers and law officers to explain Public Disclosure of Private Facts. We wanted to know if a name was covered under this law. Below sums up, what we were told.

    To prove a prima facie case of public disclosure of private facts, the plaintiff must prove a highly offensive disclosure by the defendant of private facts about the plaintiff.

    In addition, the plaintiff must demonstrate that there was:

    (A) No legitimate public interest that was served by having these private facts disclosed

    (B) That the defendant was at fault for making the disclosure, and

    (C) That the defendant’s actions were both the actual and proximate cause of the disclosure and of the harm the plaintiff suffered.

    In order for a viable cause of action to arise, the facts that the defendant discloses must pertain to the plaintiff’s private life. Any facts that are already known or that are a matter of public record cannot be the basis of a cause of action.

    Thus, for example, if the defendant reveals private facts about plaintiff that are contained in a last will and testament, the plaintiff cannot bring a cause of action based on this disclosure because a will is a public document and thus, anything contained in it, no matter how private or personal to the plaintiff, is a matter of public record.

    Next, the plaintiff must prove that the disclosure was of such a nature that would be highly offensive to a reasonable person. Thus, for example, a defendant disclosing that the plaintiff likes to eat chocolate ice cream before going to bed is not highly offensive. However, a defendant disclosing that the plaintiff “sleeps around” would be highly offensive.

    Therefore, even if you never posted your name on an online social site or never told it to friends online, but someone finds out your name and publishes it, that does not break the law. So what is a private fact?

    Common examples of private facts include information about medical conditions, sexual orientation and history, and financial status. It may also include things like someone’s social security or phone number, if that information is not ordinarily publicly available. A plaintiff has no privacy interest with respect to a matter that is already public. Thus, you cannot be held liable for discussing or republishing information about someone who is already publicly available. a person’s photograph or image can be a “private fact,” but generally not when it is captured in a public or semi-public place. Therefore, you can generally publish photographs of an individual or individuals taken in public places without liability for publication of private facts.

    1.  Oh no! Someone posted my IP is that illegal? Not at all. And IP is actually public information as well. Did you know, every time you visit a website they could access your IP? Did you know every time you send an email your IP can be found in the header of the email? We all publicly throw our IP’s around so if someone copies it and post it there is no law against it. Typically, most people have their IP address dynamically allocated to them. This means, it can change, sometimes more than once in a day. Just having someone’s IP is useless except for tracking them to a general area. However, if you have had this happen to you and are scared, you can download a VPN for free or a small fee. It’s perfectly legal in most places. We also recommend setting up a firewall if you have not already and use virus protection.
    2.  Someone posted an old court record of mine! Is that illegal? Not unless the record was sealed. The Supreme Court of the United States held that the First Amendment to the Constitution prohibits states from imposing a penalty on the press for publishing accurate information obtained from a public court record. Because of this case, most states recognize an absolute privilege for publication of information found in a publicly available (i.e., not sealed) court record. While the case involved traditional media, there is no reason to believe that its reasoning and holding would not extend to non-traditional journalists and other online publishers. This means that you cannot be held liable for publishing accurate facts about someone who you find in a public court record, regardless of how embarrassing they are. Note that this privilege will protect you in publishing information about past crimes, so long as you gather your information from publicly available court records, such as an indictment or trial transcript.
    3.  Someone is trashing me to my clients and business partners is that illegal? Yes! It’s called Tortious Interference. A good definition of this can be found in the Farlex Free Dictionary, but it basically means interfering with someone’s ability to do business or encouraging someone to break a contract.  It’s a very tempting “crime” when you feel as if you’ve been ripped off or sold a shoddy product.  I know but you have to be careful what you say to people about others. You can say, ” I don’t like your partner Fred, he seems dirty to me and gives me a bad feeling.” You cannot say, “I think you should watch out for your partner Fred. He’s a crook and a theft.” That is illegal. If you KNOW something is a fact without a doubt, then feel free to say it if it feels morally right to you.  However, you’d be surprised at how expensive and difficult it is to prove a “fact” in court if you are sued for tortious interference.
    4.  Someone is trashing me online and spreading lies about me. Is that illegal? Yes, it’s called defamation and it’s illegal.

    Merriam Webster Dictionary on defamation: Any intentional false communication, either written or spoken, that harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.

    Unlike other things that can get you sued, defamation may be a criminal charge in some places if it crosses the line into cyber-bullying or hate speech, or even if it uses the traditional “fighting words” or discloses information that a reasonable person would believe caused harm to the victim.  Defamation includes both written statements (known as libel), spoken statements (called slander), and videos, graphics or photographs. One thing to remember here is that defamation is in the mind of the reader and the outcome. Intent may (or may not) matter. For instance, you might think that what you posted was endearing, funny, cute, and inoffensive.  But if the outcome is that the person is unemployable, or suffers negative consequences, it can be defamatory.

    1.  Someone posted a private photo of me without my permission. Is that illegal? Well it depends. If you post a photo on Facebook or Twitter publicly and someone shares it then no it is not illegal.   However, if someone takes a personal photo of you off your phone or out of an album in your home and then post it without your permission publicly, you could be sued for invasion of privacy or copyright violation.  If you post a photo of someone else, claiming it is you then you can be sued for False light. This is similar to defamation, but not quite. Defamation requires a statement to be false, but “false light” also includes situations in which a photo is misleading. State laws also generally require it to be offensive to a reasonable person. Most importantly, you can be sued for impersonation.

    Finally, even with the state by state laws posted on the site people still want to know, what is considered cyber-harassment?

    Federal Stalking Laws

    United States Codes Service

     

    18 USCS § 2261A. Stalking. (2013)
    Whoever–
    (1) travels in interstate or foreign commerce or is present within the special maritime and territorial jurisdiction of the United States, or enters or leaves Indian country, with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person, and in the course of, or as a result of, such travel or presence engages in conduct that–

    (A) places that person in reasonable fear of the death of, or serious bodily injury to–

    (i) that person;

    (ii) an immediate family member (as defined in section 115) of that person; or

    (iii) a spouse or intimate partner of that person; or

    (B) causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person described in clause (i), (ii), or (iii) of subparagraph (A); or

    (2) with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person, uses the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce to engage in a course of conduct that–

    (A) places that person in reasonable fear of the death of or serious bodily injury to a person described in clause (i), (ii), or (iii) of paragraph (1)(A); or

    (B) causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person described in clause (i), (ii), or (iii) of paragraph (1)(A),

    shall be punished as provided in section 2261(b) of this title.

    Telephone harassment:

    Prohibited acts for commercial purposes; defense to prosecution.

    (1) Whoever knowingly-

    (A) within the United States, by means of telephone, makes (directly or by recording device) any obscene communication for commercial purposes to any person, regardless of whether the maker of such communication placed the call; or

    (B) permits any telephone facility under such person’s control to be used for an activity prohibited by subparagraph (A), shall be fined in accordance with title 18, United States Code, or imprisoned not more than two years, or both.

    (2) Whoever knowingly-

    (A) within the United States, by means of telephone, makes (directly or by recording device) any indecent communication for commercial purposes which is available to any person under 18 years of age or to any other person without that person’s consent, regardless of whether the maker of such communication placed the call; or

    (B) permits any telephone facility under such person’s control to be used for an activity prohibited by subparagraph (A), shall be fined not more than $ 50,000 or imprisoned not more than six months, or both.

    (3) It is a defense to prosecution under paragraph (2) of this subsection that the defendant restricted access to the prohibited communication to persons 18 years of age or older in accordance with subsection (c) of this section and with such procedures as the Commission may prescribe by regulation.

    (4) In addition to the penalties under paragraph (1), whoever, within the United States, intentionally violates paragraph (1) or (2) shall be subject to a fine of not more than $ 50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation.

    (5)

    (A) In addition to the penalties under paragraphs (1), (2), and (5), whoever, within the United States, violates paragraph (1) or (2) shall be subject to a civil fine of not more than $ 50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation.

    (B) A fine under this paragraph may be assessed either-

    (i) by a court, pursuant to civil action by the Commission or any attorney employed by the Commission who is designated by the Commission for such purposes, or

    (ii) by the Commission after appropriate administrative proceedings.

    (6) The Attorney General may bring a suit in the appropriate district court of the United States to enjoin any act or practice which violates paragraph (1) or (2). An injunction may be granted in accordance with the Federal Rules of Civil Procedure.

     

    Federal Stalking/Cyber-Bullying Laws

    Federal and State Law Enforcement

    Federal law criminalizes cyber stalking. Three major federal laws apply to cyber stalking: the Interstate Communications Act, the Telephone Harassment Act, and theInterstate Stalking and Prevention Act. In addition, a fourth federal law protects children against online stalkers.

    The Interstate Communications Act

    Under the Interstate Communications Act, it is a crime to transmit in interstate commerce any communication, such as telephone or email, containing a threat to injure anyone. One limitation of this law is that many cyber stalking behaviors do not involve threats.

    Telephone Harassment Act

    Certain forms of cyber stalking may be prosecuted under the 1934 Telephone Harassment Act, as amended in 2006. This law makes it a crime to anonymously and purposely use a telephone or Internet to transmit in interstate or foreign commerce any message “to annoy, abuse, harass, or threaten a person.” One significant limitation of this law is that it applies only to direct communications, such as email, between the stalker and victim.

    The Interstate Stalking and Prevention Act

    The 1996 Interstate Stalking and Prevention Act, amended in 2006, makes it a crime for anyone who travels in interstate or foreign commerce to use the mail, interactive computer service, or any interstate or foreign commerce facility to engage in a course of conduct that causes significant emotional distress to a person or causes the person to fear for his or her live or physical safety.

    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.

    As of 2009, 46 states have adopted stalking or harassment laws that explicitly incorporate electronic forms of communication, according to the National Conference of State Legislatures (NCSL). Most state stalking laws require that the perpetrator make a credible threat of violence against the victim; others include threats against the victim’s immediate family; and still others require only that the alleged stalker’s course of conduct constitute an implied threat.

    Cyber stalking poses several complex enforcement issues for law enforcement agencies. Overall, the lack of adequate state and federal statutory authority complicate the ability of law enforcement agencies to take immediate and appropriate action. Another issue is related to jurisdiction. For example, a cyber stalker and victim may be located in different cities or states making it, in some cases, nearly impossible for the local authority to investigate the incident. Lastly, and perhaps most significantly, the wide range of services allowing for greater online anonymity enables cyber stalkers and other cyber criminals to quickly and easily avoid accountability for their conduct.  Internet technology creates possibilities for anonymous communications and hence for anonymous cyber stalking. The identity of a cyber stalker may not be revealed or found, as the fluidity of the Internet is one of its key attractions. The Internet promotes, and enables, experimentation with different identities. Users may adopt an online persona which bears little, if any, resemblance to his or her real identity. Pseudonymity is achieved by simply forging or “spoofing” an e-mail header so as to create an online digital persona, complicating the process of tracking and law enforcement

    As more and more states amend previous legislation and/or seek to introduce new legislation combating cyber stalking, many have come to distinguish between increasingly between both cyber stalking and cyber harassment.  As defined in the introduction, cyber stalking is the use of the Internet, email or other electronic communications to stalk, and generally refers to a pattern of threatening or malicious behaviors. Cyber stalking is considered the most dangerous type of online harassment. Cyber harassment differs from cyber stalking in that it typically does not involve a credible threat. Cyber harassment generally includes threatening or harassing email messages, instant messages, or blog entries or websites dedicated to tormenting an individual. Some states approach cyber harassment by including language addressing electronic communications in general harassment statutes, while others have created stand-alone cyber harassment statutes.

     

    R.I.S.E. & STAND TEAM

    Thanks to all the police departments that helped, all the lawyers offices, and http://www.criminology.net/resources/cyber-criminology-cyber-stalking/.

     

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