Free Cyberstalking Critical Thinking Sample

Cyberstalking has been defined to mean the use of an electronic communication in a course of conduct to harass, intimidate, torment or embarrass another (Darrell). The electronic communications used in cyberstalking can include but is not limited to abusive language, threats or the disclosure of the victim’s private information. According to the Department of Justice (DoJ) the key differences between cyberstalking and its non-virtual counterpart stalking is that: a cyberstalker can be located anywhere; it is much easier for cyberstalkers to encourage third parties to participate in their acts; and electronic communications lowers the barriers to initiate harassment, bullying and threats (Kerr).
While there is no specific over-arching federal regulation fighting cyberstalking, there is a broad range of laws at both the federal and state level as well as case law that provide cyberstalking victims with an abundance of tools to stop their oppressors.
I. Federal Statutes
At the federal level, there are four statutes that have been used to fight cyberstalkers (Kerr; Machkovech). Section 875 of the United States Criminal Code (Criminal Code) prohibits the “transmitting” of any communication in “interstate of foreign commerce” that contains a threat to injure or kidnap another person (Kerr, 166). Since most electronic communication travel in interstate commerce using an e-mail or the Internet to threaten someone would be illegal. Section 2261A of the Criminal Code specifically prohibits the use of a computer or the Internet “for stalking activities” (Kerr, 167). Section 223 of the United States Telecommunications Code prohibits the use of telecommunications device to harass or make a threat against another (Kerr, 166). Lastly, Section 113 of the Violence Against Women Act amends Section 223 of the Telecommunications Code to specific include wording that makes the use of any device or software that can be used in telecommunication or other type of communications that can be transmitted by the Internet to commit an act cyberstalking is illegal (Machkovec).
II. State Statues
Every state has a law prohibiting cyberstalking specifically or, like the federal statutes, outlaw cyberstalking as part of more traditional stalking or harassment laws. Below are statutes from California, which was the first state to enact a specific cyberstalking law; and New Mexico, whose statute does not specifically state cyberstalking but includes it under other terms.
California has one of the most comprehensive anti-cyberstalking regimes in the nation. Under Section 1708.7 of the California Civil Code is prohibited from stalking another through the use of any electronic communications device (NCSL). Under Section 646.9 of the California Penal Code, it’s a crime to make a credible threat with an electronic communications device (NCSL). Lastly, California also criminalized cyber-harassment under Sections 422, 653.2 and 653m of the Penal Code (NCSL). New Mexico, on the other hand, while the law is not as specific as it is in California, under Section 30-3A-3 of the New Mexico Statutes stalking, including stalking by any “method, device or means” is illegal (NCSL).
III. Case Law
In addition to federal and state statutes there are also a growing number of cases that provide precedent and persuasive arguments for the prosecution of cyberstalkers. Below is one of the earliest and most important cases.
In the 2004 case U.S. v. Bowker, the defendant, Bowker, who was convicted of stalking Tina Knight, under Section 2261A describe above (Goodno). Bowker appealed his conviction arguing that Section 2261A was unconstitutionally overbroad. The Sixth Circuit, however, disagreed and found the law constitutional and confirmed Bowker’s conviction.
IV. Private-Sector Response
In addition to government efforts to combat cyberstalking, the private sector has also responded in a number ways, such as through self-regulation. Self-regulation refers to actions voluntarily initiated by private companies to stop or limit their customers or client’s ability to participate in or facilitate cyberstalking activities. For instance, social media firm Twitter recent announced that it will prohibit tweets of nude people that are made non-consensually or that are deemed to be revenge porn. In 2011, Internet giant Facebook provided it’s users with a number of tools on its “bullying prevention hub” to flag and report cyberstalking incidents.
V. Analysis
In spite of all these ways of combatting cyberstalking, the question remains as to whether government efforts or industry self-regulation is the most effective means of stopping cyberstalkers. On the one hand, government actions have dominated the regulation space of cyberstalking. As mentioned, there is a broad array of laws that protect cyberstalking victims. Despite the broad regulation of cyberstalking that federal, state and case law provides to ant-cyberstalking efforts, however, one of the primary obstacles to a more robust response from government efforts is that victims often fail to report the crime, leaving law enforcement unable to bring any action against perpetrators. Second, because every law must satisfy the requirements of the Constitution, there are limits to just how far the government can criminalize cyber activities. Under the First Amendment, the Supreme Court has held that in order for the government to act on a victim’s complaint of cyberstalking, it must first be proven that the cyberstalker made a “credible threat” against the victim (Kerr). A credible threat has yet to be defined by the Court and therefore judges are given substantial authority in how or if they find a cyberstalkers actions amount to an actionable violation. Lastly, because the acts occur online, it is often difficult for law enforcement to attribute specific acts to suspect. Moreover, even when a suspect’s acts are positively identified, if they are located in another state or country from the victim there are a number of jurisdiction issues that may create barriers to further investigation or prosecution.
On the other hand, are the efforts by the private sector. Since that majority of Internet activity and electronic communications take place on privately owned networks with devices made by private companies, self-regulation, in theory, should be more effective. To be sure, has proved especially effective in dealing with other cybercrimes such as software piracy. But, though industry efforts at self-regulation are useful and needed; the fact remains that there will always be those private firms that view profit and market-share above all and therefore. These firms will most likely be unreceptive to self-regulation and would therefore continue to provide cyberstalkers a medium and means to continue their activities. Moreover, there are laws that protect certain private firms from liability that their customers may produce. For instance, under Section 230 of the Communication Decency Act (CDA), a user or provider of an “interactive computer service” will not be considered as the publisher or speaker of information that has been provided to them by a third party (Kerr). In practice, what this mean sis if there is no law specifically outlawing the action, the website distributing the online threats is not liable for threats posted by the cyberstalker.
VI. Conclusion
If the policy goal is to implement the most effective means to fight cyberstalking, then it must call for a combination of government based statutes and laws with private sector self-regulation. Only in this way can the gaps in either method be adequately filled to limit and punish the activities of cyberstalkers.

Works Cited

Darrell, Keith B. Issues in Internet Law: Science, Technology, and the Law. 9th ed. Boca Raton: Amber Book Company, 2014. Print.
Goodno, Naomi Harlin. “Cyberstalking, a New Crime: Evaluating the Effectiveness of Current State and Federal Laws.” Missouri Law Review 72 (2007): 125-174. Web.
Geuss, Megan. “Twitter will ban revenge porn and non-consensual nudes. Ars Technica. arstechnica.com, 12 Mar. 2015. Web. 30 Mar. 2015.
Kerr, Orin S. Computer Crime Law. 2nd ed. St. Paul: West, 2009. Print.
Machkovech, Sam. “Congressperson asks DoJ to intensify enforcement of online harassment laws.” Ars Technica. arstechnica.com, 11 Mar. 2015. Web. 30 Mar. 2015.
“State Cyberstalking and Cyberharassment Laws.” NCSL. National Conference of State Legislatures, 2015. Web. 2 Apr. 2015. < http://www.ncsl.org/research/telecommunications-and-information-technology/cyberstalking-and-cyberharassment-laws.aspx >