Relevant Cases, Articles, etc. provided by
Erik Kjensrud
1)Thrifty-Tel, Inc. v. Bezenek 46 Cal.App. 4th 1559
CASE SUMMARY
PROCEDURAL POSTURE: Defendant customers appealed the judgment of the Superior Court of Orange County (California), in favor of plaintiff telephone company, arguing that causes of action for fraud and conversion did not lie on these facts, and that plaintiff failed to mitigate and prove its damages. They also argued that the trial court erred in calculating damages, and that Cal. Civ. Code § 1714.1 precluded or limited their damages for the acts of their children.
OVERVIEW: Plaintiff telephone company provided services to defendant customers. Defendants' minor children used a home computer to gain entry to plaintiff's confidential code, causing damage. Plaintiff knew of the hacking, but did not contact defendants. Plaintiff filed suit for damages for conversion, fraud, and the value of its services. The trial court awarded damages based on plaintiff's tariff rate schedule, and defendants appealed. The court held that plaintiff proved trespass to chattel, not conversion, and that defendants were liable. The court ruled that defendants' children's' use of the confidential code was misrepresentation on which plaintiff relied, thus giving rise to a fraud claim. The court determined plaintiff had a duty to mitigate its damages, and could not recover for avoidable losses, and that the lower court erred in awarding damages based on the tariff instead of actual damages. The court found that defendants were vicariously liable for the willful torts of their minor children under Cal. Civ. Code § 1714.1. The court therefore reversed that portion of the judgment awarding damages, and remanded for a new trial to determine damages based on the tortious conduct.
OUTCOME: The court reversed the portion of the judgment awarding damages to plaintiff telephone company, because plaintiff was required to prove its actual damages, and plaintiff was not due damages for losses it could have avoided through mitigation. It remanded the case for a new trial to determine damages for fraud and trespass to chattel, not conversion, based on the tortious acts of the children of defendant customers.
2)U.S. v. Steiger, 318 F.3d 1039
CASE SUMMARY
PROCEDURAL POSTURE: Defendant appealed his convictions on various child pornography charges by the United States District Court for the Middle District of Alabama challenging the court's conclusion that neither the Fourth Amendment nor the Electronic Communications Privacy Act of 1986, 18 U.S.C.S. § 2510 et seq., warranted suppression of the evidence used to convict him.
OVERVIEW: A law enforcement officer prepared an affidavit in support of a search warrant in which she stated that an anonymous source had located a child molester on the Internet. The affidavit described the pictures the anonymous source sent the police without mentioning that the source had obtained the evidence by "hacking" into defendant's computer. She also described in the affidavit the steps she took to corroborate the information the anonymous source had provided. The circuit court held that the anonymous source acted at all material times as a private individual. It also held that the district court correctly held that suppression was not warranted. The information relied on in support of the warrant--graphic images showing defendant sexually abusing a young child and identifying information regarding defendant which the officer had thoroughly corroborated--more than sufficed to establish probable cause. The circuit court held that the anonymous source did not intercept electronic communications in violation of the Electronic Communications Privacy Act of 1986, 18 U.S.C.S. § 2510 et seq., nor did that Act provide a basis for suppression of such communications.
OUTCOME: The judgment was affirmed.
3)Shaw v. Toshiba Am.Info.Sys., 91 F.Supp. 2d 926
CASE SUMMARY
PROCEDURAL POSTURE: Defendant distributor moved for summary judgment and defendant manufacturer moved for partial summary judgment against plaintiffs' suit seeking injunctive relief under 18 U.S.C.S. § 1030, for defendants' distribution of a faulty code in computer parts.
OVERVIEW: Defendant manufacturer copied a design that used a faulty microcode, developed by defendant distributor's parent corporation, in computer parts it manufactured and distributed. Subsequently, plaintiffs sued under a federal computer fraud statute seeking an injunction to prevent the continued distribution of the faulty code. Defendants argued that the federal statute under which plaintiffs' sued applied only to computer "hackers" and not computer manufacturers and designers. The court first noted that, although the statute was a criminal law, it provided a private right of action. Reviewing the statute's language along with analogous case law, the court then held that statute applied to the shipment and delivery of faulty microcode in computer parts, such as those at issue. The court also held that plaintiffs, as prospective purchasers of defendants' products, had standing to seek injunctive relief under the statute. Additionally the court held that defendant distributor's agreement with defendant manufacturer rendered it liable to plaintiffs under the statute at issue, despite the fact that it neither designed nor owned the rights to the computer parts on which the code existed.
OUTCOME: Defendants' motions for summary judgment against plaintiffs' suit seeking injunctive relief for violations of a federal computer law were denied because the law under which plaintiffs' suit was brought was applicable to defendants.
4)Bartnicki v. Vopper, 532 U.S. 514
CASE SUMMARY
PROCEDURAL POSTURE: Petitioners sued respondents, alleging that respondents violated wiretapping statutes by repeatedly publishing the contents of a telephone conversation that had been surreptitiously intercepted by an unknown person. The United States Court of Appeals for the Third Circuit ruled in favor of respondents, finding the statutes invalid on freedom of speech grounds. The petition for writ of certiorari to the appellate court was granted.
OVERVIEW: Petitioners alleged that an unknown person intercepted petitioners' telephone conversation regarding a matter of public concern and that respondent media representatives published the contents of the conversation knowing that the recording had been obtained illegally, in violation of federal and state wiretapping statutes. In petitioners' suit against respondents for damages, the appellate court determined that the statutes were invalid. On writ of certiorari, the court affirmed the judgment, determining that the application of the statutes under the circumstances violated the First Amendment. Petitioners and the Government identified two interests served by the federal and state statutes, the interest in removing an incentive for parties to intercept private conversations and the interest in minimizing the harm to persons whose conversations have been illegally intercepted. However, the court determined that the interests could not justify the statutes' restrictions on speech.
OUTCOME: Judgment was affirmed because the disclosures made by respondents were protected by the First Amendment.
5)State v. Kent, 945 P.2d 145
CASE SUMMARY
PROCEDURAL POSTURE: Defendant appealed her conviction by the Third District, Salt Lake Department (Utah), based on her conditional guilty plea to one count of computer crimes under Utah Code Ann. § 76-6-703(3) (Supp. 1996). Defendant claimed that the statute proscribed the same conduct as the statutes criminalizing forgery, insurance fraud, and/or communications fraud, and that she should have been charged with one of those lesser crimes.
OVERVIEW: Defendant used another employee's password to access her employer's computer system and altered two insurance claim forms. She was arrested when she tried to pick up a check that was issued on the false claim. At trial, she entered a conditional guilty plea to a computer crimes charge, asserting that she should have been charged with a lesser offense of forgery, insurance fraud, or communications fraud. On appeal, the court affirmed, finding that the computer crimes statute required the use of a computer, which the lesser crimes did not. The court ruled that the computer crimes statute did not proscribe the same conduct as the other statutes and that she could be charged with the crime carrying the more severe sentence, even if she could have been charged with a lesser crime. The court concluded that there was a rational basis for the distinction between the more recent computer crimes statute and the other statutes because computer crimes were difficult to police and had a greater potential for ruinous consequences and, thus, the legislature decided to punish computer crimes more severely that other offenses involving fraud.
OUTCOME: The court affirmed defendant's conviction on one count of computer crimes.
6)State v. Allen, 917 p.2d 848
CASE SUMMARY
PROCEDURAL POSTURE: The State sought review of the judgment from the Johnson District Court (Kansas), which dismissed the criminal complaint against defendant after a preliminary hearing. The criminal complaint charged that defendant's telephonic connections prompted a corporate computer owner to change its security systems, thus constituting felony computer crime in violation of Kan. Stat. Ann. § 21-3755(b).
OVERVIEW: Defendant had used his computer, equipped with a modem, to call various modems of the corporate computer owner, using random dialing. The State presented no evidence that defendant had ever entered any computer system of the corporate computer owner. The trial court dismissed the complaint after finding no probable cause existed to believe defendant had committed any crime. On appeal, the court determined that felony computer crime pursuant to Kan. Stat. Ann. § 21-3755(b)(1) required that the State prove three distinct elements: (1) intentional and unauthorized access to a computer system, computer network, or any other defined property; (2) damage to a computer, computer system, computer network, or any other defined property; and (3) a loss in value as the result of such crime of at least $ 500 but less than $ 25,000. The court held that the trial court did not err in determining that the State had failed to present evidence showing probable cause as to any of the three elements.
OUTCOME: The court affirmed the judgment of the trial court dismissing the criminal complaint for lack of probable cause.
7)Briggs v. State, 348 Md. 470
CASE SUMMARY
PROCEDURAL POSTURE: Defendant sought review of his conviction by the Circuit Court for Anne Arundel County, (Maryland) for the crime of unauthorized access to computers.
OVERVIEW: Defendant sought review of his conviction for the crime of unauthorized access to computers. The issue before the court was whether an employee who was entitled to use an employer's computer system in connection with employment duties, but who exceeded the scope of that authorization, acted in a manner proscribed by law. Defendant contended that his conduct did not come within the prohibition of the statute. Defendant argued that the law criminalized the conduct of an individual who intentionally and willfully accessed a computer without authorization and was inapplicable to conduct that could be characterized as only exceeding authorized access. Defendant concluded that application of this statute to his conduct was contrary to law. The court held that defendant's access to the computer was not without authorization within the meaning of the statute. The court concluded that the intent of the legislature was to criminalize the misuse of computers or computer networks by those whose initial access was unauthorized. The court held that if the law was to be broadened to include the defendant's conduct, it should be modified by the legislature not the court.
OUTCOME: The court reversed the judgment of the lower court.
8)State v. Rowell, 121 N.M. 111
CASE SUMMARY
PROCEDURAL POSTURE: Defendant sought review of the decision of the Court of Appeals (New Mexico), which affirmed his conviction for computer access with intent to defraud over $ 250 under N.M. Stat. Ann. § 30-45-3(C) (1989) and reversed his conviction for attempt to commit fraud under N.M. Stat. Ann. §§ 30-16-6, 30-28-1(C) (1994), holding that defendant could not be convicted of committing both a completed offense and an attempted offense.
OVERVIEW: A man telephoned the victim explaining that he was an attorney and that the victim was entitled to an award from a class action against fraudulent telemarketers in Nevada. The victim was instructed to wire money to Florida for court costs. The victim contacted the police. Police arrested someone at a Western Union terminal, and that person identified defendant as the person who made the telephone calls. The long-distance calls were processed by various computerized switches between Florida and New Mexico. The State argued that these switches were controlled by computers and fell within the statutory definition of a computer or a computer network in violation of N.M. Stat. Ann. § 30-45-3 (1989) when defendant used the telephone to commit larceny. The trial court convicted defendant and the court of appeals reversed the conviction for the attempt only. The court reversed and held that the use of a telephone network consisting in part of computerized switches did not constitute the accessing of a computer within the New Mexico Computer Crimes Act and that the single-larceny doctrine did not apply to situations involving multiple victims, locations, and time periods.
OUTCOME: The court reversed the court of appeals' decision that affirmed defendant's conviction under the Act and that reversed the attempt conviction under the single-larceny doctrine. The court remanded the case to the court of appeals for a reconsideration of the attempted-fraud conviction
9)People v. Katakam, 172 misc. 2d 943
CASE SUMMARY
PROCEDURAL POSTURE: The defendant was charged with unlawful duplication of computer-related material, criminal possession of computer-related material, and computer trespass after he compressed his employer's script library into his personal files and sought to have the files sent to him once he left his employment. The defendant brought a motion to dismiss the indictment.
OVERVIEW: The defendant argued that the evidence before the grand jury was insufficient to establish his guilt. The court found that the cost of designing, developing, and typing the programs was high. The grand jury could have presumed that the programs would have considerable value to a competitor and that it was this value that the defendant had appropriated. There was ample reason to presume that the defendant was aware that he had duplicated and was in possession of the employer's proprietary script files. The defendant's employer put him on notice that he had no right to the proprietary files when he was hired. Even if the defendant believed that he was duplicating something of little or no value, he was aware that the files were not his to appropriate. It was not clear that defendant was without evil intent when he copied the files. There was no evidence that accessing the trunk file was forbidden to the defendant or that he had notice that it was forbidden. He was not acting in excess of authorization when he accessed the files. The harm suffered by the defendant's former employer and current employer was measured by the cost of their investigations and the disruptions they suffered.
OUTCOME: The court denied the defendant's motion to dismiss the indictment except as to the computer trespass charge.
10)James v. Meow Media, 300 f.3d 683
CASE SUMMARY
PROCEDURAL POSTURE: Plaintiffs, parents and estate administrators of high school shooting victims, appealed a judgment of the United States District Court for the Western District of Kentucky at Paducah dismissing, for failing to state claims, their negligence and strict liability actions against defendants, several video game, movie production, and internet content-provider firms.
OVERVIEW: The shooter allegedly regularly played video games, watched movies, and viewed internet sites produced by the firms. These activities, the parents argued, desensitized the shooter to violence and caused him to kill. They claimed that distribution of this material to impressionable youth constituted negligence. Moreover, they alleged strict product liability. The firms argued that they owed no duty to protect third parties from how players or viewers processed the ideas and images, and that the killer's independent decision to kill constituted a superseding cause. They also contended that they had not distributed "products" under Kentucky law. The court found that the firms did not owe a duty to protect the decedents, noting among other things, that individuals were generally entitled to assume that third parties will not commit intentional criminal acts. It further concluded that even if it were to find a duty, the parents likely had not alleged sufficient facts to establish proximate causation. On the products liability issue, it held that the video game cartridges, etc., were not sufficiently "tangible" to constitute products in the sense of their communicative content.
OUTCOME: The judgment was affirmed.
11)People v. Hawkins, 98 Cal.app. 4th 1428
CASE SUMMARY
PROCEDURAL POSTURE: Defendant appealed the order of the Santa Clara County Superior Court, California, convicting him of a computer crime.
OVERVIEW: After hearing testimony for six days, a jury acquitted defendant of a charge of misappropriating a trade secret, Cal. Penal Code § 499c, and convicted him of the felony of knowingly accessing and taking data from a computer system, Cal. Penal Code § 502(c)(2). The trial court placed defendant on formal probation for three years, on condition, among others, that he serve six months in jail. The appellate court granted review and upheld the conviction. The trial court did not abuse its discretion in admitting evidence of other misconduct. Defendant was properly charged with a felony under the statute. His conduct satisfied the mens rea requirement. Section 502(c)(2) was not unconstitutionally vague. The trial court did not err in admitting printouts of computer access times. No jury unanimity instruction was required.
1)ARTICLE: Lost and Found in Cyberspace: Informational Privacy in the
Age of the Internet
34 San Diego L. Rev. 1153, *
Copyright (c) 1997 San Diego Law Review Association
San Diego Law Review
Summer, 1997
34 San Diego L. Rev. 1153
LENGTH: 37401 words
SUSAN E. GINDIN *
* Practitioner, Littleton, Colorado; B.A., UCLA; M.S., Drexel University College of Information Science & Technology; J.D., State University of New York at Buffalo. The author thanks the members of her family and Jonathan A. David for their assistance.
SUMMARY:
... Our private lives are now exposed by the electronic retrieval and publication of personal information. ... Even without providing personal information when registering to use a site, a user's interests can be inferred based on Web site or online service use. ... The online service providers, as well as direct marketers, obtain much of the personal information they sell from public records. ... The Privacy Act of 1974 and the Computer Matching and Privacy Protection Act of 1988 regulate government record-keeping and prevent government agencies from divulging certain personal information without proper authorization. ... Some exceptions give online service providers the power to intercept and disclose electronic communications under certain circumstances: situations in which the service providers suspect the sender is attempting to damage the system, or when necessary for the rendition of the service (e.g. the systems operator (sysop) must review the content of the communication before forwarding it). ... This legislation would therefore place restrictions on the collection and use of personal data by the users of personal information. ...
2)ARTICLE: PRIVATE ENFORCEMENT OF CYBERCRIME ON THE ELECTRONIC FRONTIER
11 S. Cal. Interdis. L.J. 63, *
Copyright (c) 2001 Southern California Interdisciplinary Law Journal
Southern California Interdisciplinary Law Journal
Winter, 2001
11 S. Cal. Interdis. L.J. 63
LENGTH: 34172 words
Michael L. Rustad*
* Michael Rustad, Ph.D., J.D., LL.M. is the Thomas F. Lambert Jr. Professor of Law and Director of the High Technology Law Program at Suffolk University Law School in Boston. I would like to thank Suffolk University Law School students Shannon Knight, Ron Kaplan, Jessica Natale, Anne-Marie Panone, William Stigler and Anna Zubova for their considerable help with this piece. Anna Zubova cite checked the article and also provided valuable research on federal criminal law statutes and cybercrime in Eastern Europe. I would also like to thank my wife Chryss Knowles for her editorial work. Julie Ross, Esquire, of the Massachusetts Attorney General's Computer Crime Unit made important contributions as well. Anita Sharma, Esquire, provided useful editorial suggestions as well. I would also like to thank Carolyn Ko, Executive Editor of the Southern California Interdisciplinary Law Journal for her editorial suggestions.
SUMMARY:
... It seems as if everyone is talking about crime on the Internet. ... The law enforcement community has uncovered many Internet crimes originating in Eastern European countries. ... Crimes on the Internet cross national borders, creating the need for international cooperation in law enforcement. ... For example, the United Kingdom enacted the Regulation of Investigatory Powers Act to bring law enforcement into the age of the Internet. ... A company may disclose information stored on its computer system when the Government seeks to obtain information from electronic communications, remote computing services, or Internet service providers ("ISPs"). ... The National Information Infrastructure Protection Act of 1996 was enacted to extend federal computer crime statutes to include the Internet. ... There are few reported cases in which public authorities took the lead in uncovering a misappropriation of a trade secret from a computer system. ... Titles Three and Four cover content-related offenses related to copyright offenses, as well as representations of children engaged in sexual conduct or virtual child pornography. ... Although Internet-related hacking represents a serious societal threat, criminal law lags behind the rapidly evolving Internet. ... In order for criminal law to function, law enforcement units will require officers who understand encryption, digital signatures, and computer viruses, and know how to track computer criminals on the Internet. ...
Prior technological advances--the automobile, the telegraph, and the telephones, for example--have brought dramatic improvement for society, but have also created new opportunities for wrongdoing. The same is true of the Internet, which provides unparalleled opportunities for socially beneficial endeavors... . By the same token, however, individuals who wish to use a computer as a tool to facilitate unlawful activity may find that the Internet provides a vast, inexpensive, and potentially anonymous way to commit unlawful acts.
--President's Working Group of Unlawful Conduct on the Internet 1
3)ARTICLES: E-LAW 4: Computer Information Systems Law and System Operator Liability +
21 Seattle Univ. L. R. 1075, *
Copyright (c) 1998 The Seattle University Law Review
Seattle University Law Review
Spring, 1998
21 Seattle Univ. L. R. 1075
LENGTH: 61479 words
+ Copyright 1992-1998 by David J. Loundy.
David J. Loundy *
* Mr. Loundy is an attorney at the law firm of Davis, Mannix & McGrath in Chicago. The author has a J.D. from the University of Iowa College of Law and has a B.A. in Telecommunications from Purdue University. Mr. Loundy is also chairman of the Chicago Bar Association Computer Law Committee, chair of the Internet Law subcommittee of the Illinois State Bar Association Intellectual Property Section Council, and an adjunct professor at the John Marshall Law School. This Article is an updated and revised version of the article E-Law: Legal Issues Affecting Computer Information Systems and System Operator Liability which appeared in Volume 3, Number 1, of the Albany Law Journal of Science and Technology.
SUMMARY:
... Add in gigabytes of usenet news traffic that typically passes through the average Internet service provider's system, and the amount of content for which there may be liability becomes tremen dous. ... This view is supported by the Stratton Oakmont decision, discussed earlier, which held that when a system operator does take substantial steps to monitor system content, it can be held responsible for not doing an adequate job. ... In fact, this section would seem to provide immunity even when a system operator sees questionable content on a system and actively decides to leave the content publicly accessible. ... Search engines, however, read the key words a web site designer puts in this hidden code for rating how closely a web page's content matches the search request of a search engine user looking for specific content. Thus by manipulating the content of the meta-tags, a web site designer can affect what searches will provide a reference to the web page and the prominence the page will receive in a search report. ... What is necessary to regulate computer information system content and system operator liability is, first and foremost, an understanding of the technology. ...
4)NOTE: GLOBAL INTERNET REGULATION: THE RESIDUAL EFFECTS OF THE "ILOVEYOU" COMPUTER VIRUS AND THE DRAFT CONVENTION ON CYBER-CRIME
25 Suffolk Transnat'l L. Rev. 491, *
Copyright (c) 2002 Suffolk Transnational Law Review
Suffolk Transnational Law Review
Summer, 2002
25 Suffolk Transnat'l L. Rev. 491
LENGTH: 8758 words
Shannon C. Sprinkel
SUMMARY:
... Part II of this Note discusses the global ramifications of the "ILOVEYOU" virus and the economic implications that Filippino law caused by its inability to punish the virus' creator. ... Part IV of this Note analyzes The Draft Convention on Cyber-crime (the Treaty) and compares the proposed solution to those of other multinational organizations. ... Internet Service Providers (ISPs) traced the virus to a telephone line in his apartment. ... In addition to criminal repercussions, a second approach to Internet regulation is decriminalizing all forms of non-malicious hacking and establishing a regulatory scheme found in tort liability. ... A separate COE Committee of Experts on Crime in Cyber-space (PC-CY Committee) formed in 1997 to draft a legally binding instrument (the Treaty) defining cyber-crime offenses and addressing issues of jurisdiction, international cooperation, search and seizure, data protection, and ISPs liability. ... The Treaty parallels that of the G-8 by fostering international cooperation in locating and identifying cyber criminals, advocating computer crime training conferences, and standardizing industry protections against cyber-crime. ... An additional criticism of tort liability, specifically liability of ISPs, focuses upon the inherent problems of relying upon "indirect" regulation, rather than "direct" regulation of hacking activity through technology-based solutions of Internet structure. ...
5)NOTES & COMMENTS: THE DEMISE OF ANONYMITY: A CONSTITUTIONAL CHALLENGE TO THE CONVENTION ON CYBERCRIME
23 Loy. L.A. Ent. L. Rev. 81, *
Copyright (c) 2002 Loyola of Los Angeles Entertainment Law Review
Loyola of Los Angeles Entertainment Law Review
2002
23 Loy. L.A. Ent. L. Rev. 81
LENGTH: 23863 words
Albert I. Aldesco*
* I would like to thank the editors and staff of Loyola of Los Angeles Entertainment Law Review, particularly Kent F. Lowry, Christopher P. Campbell, Jeremy A. Lane, Lauren Katunich, Dara Tang, Shannon McWhinney, and Jennifer L. Grace for their generous contributions and diligent efforts. I dedicate this Comment to my parents, the rest of my family, and to Jacqueline, whose unwavering support and love inspires me.
SUMMARY:
... The vertiginous growth of the Internet has vastly expanded the means of communication. ... Part IV criticizes those specific provisions of the Convention that restrict truly anonymous speech on the Internet as being incompatible with the First Amendment. ... By requiring the preservation of "a sufficient amount of traffic data in order to identify the service provider and the path through which the communication was transmitted," and "regardless of whether one or more service providers were involved in the transmission," the Convention places a new burden on providers to be able to trace every anonymous message, record every Web site visited, and in effect, be able to capture "a full profile of an individual's personal and professional associations and activities. ... To ensure user accountability while preserving avenues for anonymous online communication, the Internet can be zoned for various uses that offer individuals varying degrees of anonymity or privacy, while simultaneously requiring accountability by some means of authentication. ... The Convention's broad requirements for data preservation, and provisions for the disclosure of subscriber information and encryption code pose a chilling effect on anonymous online speech. ...
Convention on Cybercrime (ETS no. 185)
--------------------------------------------------------------------------------
the full text can be located on the web
Summary
Open for signature by the member States of the Council of Europe and by non-member States which have participated in its elaboration, in Budapest, on 23 November 2001.
Entry into force : Ratification by five States, including at least three member States of the Council of Europe.
Summary of the treaty
The Convention is the first international treaty on crimes committed via the Internet and other computer networks, dealing particularly with infringements of copyright, computer-related fraud, child pornography and violations of network security. It also contains a series of powers and procedures such as the search of computer networks and interception.
Its main objective, set out in the preamble, is to pursue a common criminal policy aimed at the protection of society against cybercrime, especially by adopting appropriate legislation and fostering international co-operation.
The Convention is the product of four years of work by Council of Europe experts, but also by the United States, Canada, Japan and other countries which are not members of the Organisation. It will be supplemented by an Additional Protocol making any publication of racist and xenophobic propaganda via computer networks a criminal offence.
ELECTRONIC HARASSMENT
LEGAL ISSUES CHECKLIST
CALIFORNIA AND FEDERAL
© Copyright 2000, Colin Hatcher
CONTENTS
(B) CALIFORNIA STATE CRIMINAL LAW
I. IS THERE A CRIME OF STALKING/CYBERSTALKING?
1) California Penal Code § 646.9 - Stalking
II. IS THERE A CRIME OF OBSCENE, THREATENING OR ANNOYING
COMMUNICATIONS? 1) California Penal Code § 653m - Obscene, Threatening or Annoying Communications a) Obscene Communications - 653m(a)
b) Threatening Communications - 653m(a)
c) Annoying Communications - 653m(b) & (c)
III. IS THERE A CRIME OF MAKING TERRORIST THREATS?
1) California Penal Code § 422 - Punishment for Threats
(C) CALIFORNIA STATE CIVIL LAW
IV. IS THERE A TORT OF STALKING/CYBERSTALKING?
1) California Civil Code § 1708.7 - Stalking
V. IS THERE A TORT OF DEFAMATION?
1) Libel: California Civil Code § 45 2) Slander: California Civil Code § 46
VI. IS THERE A TORT OF SEXUAL HARASSMENT?
1) California Civil Code § 51.9 - Sexual Harassment
VII. ARE THERE GROUNDS FOR OBTAINING AN INJUNCTION?
1) California Code of Civil Procedure § 527.6. Injunctions to Prevent Harassment
(D) COMMON LAW TORTS APPLYING IN CALIFORNIA
VIII. IS THERE A TORT OF INVASION OF PRIVACY?
1) Invasion of Privacy 1 - Unreasonable Intrusion 2) Invasion of Privacy 2 - Misappropriation of Identity
3) Invasion of Privacy 3 - Publicity of Private Information
4) Invasion of Privacy 4 - False Light Invasion of Privacy
IX. IS THERE A TORT OF INTENTIONAL OR RECKLESS INFLICTION OF EMOTIONAL DISTRESS?
(E) FEDERAL DEFINITION OF "ELECTRONIC COMMUNICATIONS" USED BY CALIFORNIA STATE LAW.
X. IS THERE A CRIME OF MAKING EXTORTION AND THREATS IN INTERSTATE COMMUNICATIONS?
1) 18 USCS § 875. Crimes-Extortion and Threats- Interstate Communications
XI. IS THERE A CRIME OF INTERSTATE STALKING?
1) 18 USCS § 2261A. Crimes-Domestic Violence and Stalking-Interstate Stalking
XII. IS THERE A CRIME OF MAKING OBSCENE OR HARASSING ELECTRONIC COMMUNICATIONS?
1) 47 USCS § 223. Obscene or Harassing Telephone Calls in the District of Columbia or in Interstate or Foreign Communications
(G) STATUTORY AND OTHER ENFORCEMENT PROBLEMS RELATING TO ELECTRONIC OR ONLINE HARASSMENT
1) "Credible Threats"
2) "Following"
3) Preserving of evidence
4) Free Speech Issues
5) International and Internet Jurisdiction Issues
6) Difficulties in identifying the person harassing you online
(H) APPENDIX: THE STATUTES IN DETAIL
CALIFORNIA HARASSMENT STATUTES
1) California Penal Code § 646.9 - Stalking
2) California Penal Code § 653m - Obscene, Threatening or Annoying Communications
3) California Penal Code § 422 - Punishment for Terrorist Threats
4) California Civil Code § 1708.7 - Stalking
5) California Civil Code § 45 - Libel.
6) California Civil Code § 46 - Slander
7) California Civil Code § 51.9 - Sexual Harassment
8) California Code of Civil Procedure § 527.6. Injunctions to Prevent Harassment
1) 18 USCS § 875. Crimes-Extortion and Threats-Interstate Communications 2) 18 USCS § 2261A. Crimes-Domestic Violence and Stalking-Interstate Stalking
3) 47 USCS § 223. Obscene or Harassing Telephone Calls in the District of Columbia or in Interstate or Foreign Communications
______________________________
There are 3 statutory crimes under California law that relate to internet related harassment. They are:
1) California Penal Code § 646.9 - Stalking;
2) California Penal Code § 653m - Obscene, Threatening or Annoying Communications; and
3) California Penal Code § 422 - Punishment for (Terrorist) Threats.
There are 4 statutory torts (civil actions) under California Law that relate to internet related harassment, and one statute relating to injunctions. They are:
1) California Civil Code § 1708.7 - Stalking;
2) California Civil Code § 45 - Defamation 1: Libel;
3) California Civil Code § 46 - Defamation 2: Slander;
4) California Civil Code § 51.9 - Sexual Harrassment; and
5) California Code of Civil Procedure § 527.6 - Injunctions to Prevent Harassment.
There are 5 additional causes of legal action in California relating to internet related harassment that are not defined by a statute, but apply through Common Law. They are:
1) Unreasonable Intrusion (Invasion of Privacy 1);
2) Misappropriation of Identity (Invasion of Privacy 2);
3) Publicity of Private Life (Invasion of Privacy 3);
4) False Light Invasion of Privacy (Invasion of Privacy 4); and
5) Intentional Infliction of Emotional Distress.
This makes a total of 12 possible legal causes of action to consider in an online harassment case involving California law.
There are 3 statutory crimes under Federal Law relating to internet/online harassment. They are:
1) 18 USCS § 875. Crimes-Extortion and Threats-Interstate Communications
2) 18 USCS § 2261A. Crimes-Domestic Violence and Stalking-Interstate Stalking
3) 47 USCS § 223. Obscene or Harassing Telephone Calls in the District of Columbia or in Interstate or Foreign Communications
______________________________
(B) CALIFORNIA STATE CRIMINAL LAW
I. IS THERE A CRIME OF STALKING/CYBERSTALKING?
8 Part Test (California)
1) CALIFORNIA PENAL CODE § 646.9 - STALKING
1) Is there evidence of a pattern of willfull and malicious conduct on behalf of the defendant, evidencing a continuity of purpose, the intent of which was to follow, harass, seriously alarm, annoy, torment, or terrorize the plaintiff? AND
2) Is there evidence that the plaintiff was knowingly, specifically and personally chosen as the target of the defendant's malicious conduct? AND
3) Is there evidence that the defendant's actions seriously alarmed, annoyed, tormented, or terrorized the plaintiff?
4) Is there evidence that the harasser's actions were repeated? AND
5) Is there evidence that the defendant knowingly and willfully made at least one credible threat with intent to place the plaintiff in reasonable fear for their safety, and with the apparent ability to carry out the threat? AND
6) Is there evidence that the harasser's actions were such as would cause a reasonable person to suffer substantial emotional distress? AND
7) Is there evidence that the defendant's actions caused the plaintiff to actually suffer substantial emotional distress, i.e., highly unpleasant mental suffering or anguish from socially unacceptable conduct, which entailed such intense, enduring and nontrivial emotional distress that no reasonable person in a civilized society should be expected to endure it? AND
8) Is there evidence that the defendant's actions had no legitimate purpose?
CALIFORNIA STALKING CASELAW: See
PEOPLE v. HEILMAN, 25 Cal App 4th 391 (Cal. Ct. of Appeals 1994)
PEOPLE v. CARRON, 37 Cal. App. 4th 1230 (Cal. Ct. of Appeals 1995)
PEOPLE v. McCLELLAND, 42 Cal App 4th 144 (Cal. Ct. of Appeals 1996)
PEOPLE v. HALGREN, 52 Cal App 4th 1223 (Cal. Ct. of Appeals 1996)
PEOPLE v. McCRAY, 58 Cal. App. 4th 159 (Cal. Ct. of Appeals 1997)
PEOPLE v. FALCK, 52 Cal App 4th 287 (Cal. Ct. of Appeals 1997)
PEOPLE v. NORMAN, 75 Cal. App. 4th 1234 (Cal. Ct. of Appeals 1999)
PEOPLE v. EWING, 76 Cal. App. 4th 199 (Cal. Ct. of Appeals 1999)
PEOPLE v. BORELLI, 77 Cal App 4th 703 (Cal. Ct. of Appeals 2000)
II. IS THERE A CRIME OF OBSCENE, THREATENING OR ANNOYING COMMUNICATIONS?
CALIFORNIA PENAL CODE § 653m - OBSCENE, THREATENING OR ANNOYING COMMUNICATIONS
OBSCENE COMMUNICATIONS [653m(a)] - 2 part test
1) Is there evidence that the defendant communicated with the plaintiff using obscene language? AND
2) Is there evidence that the defendant intended to annoy the plaintiff?
CALIFORNIA OBSCENE COMMUNICATIONS CASELAW: See
PEOPLE v. HERNANDEZ, 231 Cal. App. 3d 1376 (Cal. Ct of Appeals 1991)
THREATENING COMMUNICATIONS [653m(a)] - 2 part test
1) Is there evidence that the defendant communicated a threat to inflict injury on the plaintiff's person or property? AND
2) Is there evidence that the defendant intended to annoy the plaintiff?
CALIFORNIA THREATENING COMMUNICATIONS CASELAW: See
PEOPLE v. HERNANDEZ, 231 Cal. App. 3d 1376 (Cal. Ct of Appeals 1991)
ANNOYING COMMUNICATIONS [653m(b) & (c)] - 5 part test
1) Is there evidence that the defendant made repeated telephone calls or made repeated contact using electronic communications, whether or not conversation ensued, calling more than 10 times in a 24-hour period? AND
2) Is there evidence that the repeated telephone calls or electronic contacts were made to the plaintiff's workplace? AND
3) Is there evidence that the defendant made the communications anonymously? AND
4) Is there evidence that the defendant intended to annoy the plaintiff? AND
5) Is the plaintiff a spouse, former spouse, cohabitant, former cohabitant, or person with whom the defendant has a child, or has had a dating or engagement relationship or is having a dating or engagement relationship?
CALIFORNIA ANNOYING COMMUNICATIONS CASELAW: See
PEOPLE v. HERNANDEZ, 231 Cal. App. 3d 1376 (Cal. Ct of Appeals 1991)
III. IS THERE A CRIME OF MAKING TERRORIST THREATS?
CALIFORNIA PENAL CODE § 422 - PUNISHMENT FOR THREATS (IN TITLE 11.5. TERRORIST THREATS) - 4 part test
1) Is there evidence that the defendant threatened to commit a crime which would result in death or great bodily injury to the plaintiff? AND
2) Is there evidence that it was the defendant's specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, was to be taken as a threat by the plaintiff, even if there was no intent of actually carrying it out? AND
3) Is there evidence that the threat on its face and under the circumstances in which it was made, was so unequivocal, unconditional, immediate, and specific as to convey to the plaintiff a gravity of purpose and an immediate prospect of execution of the threat? AND
4) Is there evidence that the threat communicated caused the plaintiff reasonably to be in sustained fear for their own safety?
CALIFORNIA TERRORIST THREATS CASELAW: See
PEOPLE v. BROOKS, 26 Cal. App. 4th 142 (Cal. Ct. of Appeals 1994)
PEOPLE v. McCRAY, 58 Cal. App. 4th 159 (Cal. Ct. of Appeals 1997)
PEOPLE v. BUTLER, 2000 Cal. App. LEXIS 962 (Cal. Ct. of Appeals 2000)
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(C) CALIFORNIA STATE CIVIL LAW
IV. IS THERE A TORT OF STALKING/CYBERSTALKING?
4 Part Test
CALIFORNIA CIVIL CODE § 1708.7 - STALKING
1) Is there evidence of a pattern of conduct evidencing a continuity of purpose, and which has no legitimate purpose, the intent of which was to follow, harass, seriously alarm, annoy, torment, or terrorize a specifically chosen target? AND
2) Is there evidence that the target reasonably feared for their safety? AND
3) Is there evidence that the harasser made at least one credible threat to the target with the intent to place the target in reasonable fear for their safety, and with the apparent ability to carry out the threat? AND
4) Is there evidence that on at least one occasion, the target clearly and definitively demanded that the harasser cease and abate their pattern of conduct and the harasser persisted in their pattern of conduct?
V. IS THERE A TORT OF DEFAMATION?
CALIFORNIA CIVIL CODE § 45. LIBEL - 5 part test
1. LIBEL
1) Is there evidence that the defendant made a false written statement, or a statement embodied in any physical form, concerning the plaintiff? AND
2) Is there evidence that the statement was defamatory, i.e., that it had the capability of harming the plaintiff's reputation if it were believed, by exposing them to hatred, contempt, ridicule or obloquy, or causing them to be shunned and avoided, or by injuring them in their occupation? AND
3) Is there evidence that the defendant communicated that statement to a person other than the plaintiff? AND
4) Is there evidence that the defendant knew the defamatory statement was false, OR acted in reckless disregard as to whether the statement were false or not? AND
5) Is there evidence that the statement was libellous on its face, i.e., that the statement was clearly recognizable as defamatory without any explanation required. OR if it was not libellous on its face, is there evidence that the plaintiff suffered actual harm of a pecuniary nature, i.e., suffered a financial loss, as a result of the defamatory statement being made and believed by a third person?
CALIFORNIA CIVIL CODE § 46. SLANDER - 5 part test
2. SLANDER
1) Is there evidence that the defendant made a false oral or spoken statement concerning the plaintiff? AND
2) Is there evidence that the statement was defamatory, i.e., that it had the capability of harming the plaintiff's reputation if it were believed? AND
3) Is there evidence that the defendant communicated that statement to a person other than the plaintiff? AND
4) Is there evidence that the defendant knew the defamatory statement was false, OR acted in reckless disregard as to whether the statement were false or not? AND
5) Is there evidence that the plaintiff suffered actual harm of a pecuniary nature, i.e., suffered a financial loss, as a result of the defamatory statement being made and believed by a third person, OR if there is no actual financial harm, does the slander take the form of either a) Statements imputing morally culpable criminal behavior to the plaintiff, or b) Statements alleging that the plaintiff currently suffers from a venereal or another loathsome and communicable disease, or c) Statements that suggest that the plaintiff is unfit to conduct their business, trade, profession or office, or d) Statements imputing either impotence or serious sexual misconduct to the plaintiff?
VI. IS THERE A TORT OF SEXUAL HARASSMENT?
California Civil Code § 51.9 (2000)
§ 51.9. Sexual harassment
5 part test
1) Is there evidence of a business, service, or professional relationship between the plaintiff and defendant, e.g, physician, psychotherapist, dentist, attorney, holder of a master's degree in social work, real estate agent, real estate appraiser, accountant, banker, trust officer, financial planner loan officer, collection service, building contractor, escrow loan officer, executor, trustee, administrator, landlord, property manager, teacher, or any relationship that is substantially similar to any of the above? AND
2) is there evidence that the defendant has made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender? AND
3) Is there evidence that these actions were unwelcome and pervasive or severe? AND
4) Is there evidence that there is an inability by the plaintiff to easily terminate the relationship? AND
5) Is there evidence that the plaintiff has suffered or will suffer economic loss or disadvantage or personal injury, including, but not limited to, emotional distress or the violation of a statutory or constitutional right, as a result of the defendant's conduct?
VII. ARE THERE GROUNDS FOR OBTAINING AN INJUNCTION?
CALIFORNIA CODE OF CIVIL PROCEDURE § 527.6. Injunctions to prevent harassment
An injunction can be obtained under any one of the following 3 provisions:
1) Is there evidence that the plaintiff has suffered unlawful violence (any assault or battery, or stalking as defined by statute), that serves no legitimate purpose; OR
2) Is there evidence that the plaintiff has received a credible threat of violence, i.e., a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose; OR
3) Is there evidence that the plaintiff has been the target of a knowing and willful course of conduct directed specifically at them that seriously alarms, annoys, or harasses them, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff. "Substantial emotional distress" means highly unpleasant mental suffering or anguish from socially unacceptable conduct, which entails such intense, enduring and nontrivial emotional distress that no reasonable person in a civilized society should be expected to endure it. "Course of conduct" is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, fax, or computer e-mail. Constitutionally protected activity is not included within the meaning of "course of conduct."
CALIFORNIA HARASSMENT INJUNCTIONS CASELAW: See
SCHILD v. RUBIN, 232 Cal. App. 3d 755 (Cal. Ct of Appeals 1991)
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(D) COMMON LAW TORTS APPLYING IN CALIFORNIA
VIII. IS THERE A TORT OF INVASION OF PRIVACY?
I. INVASION OF PRIVACY 1 - UNREASONABLE INTRUSION - 4 part test
1) Is there evidence that the defendant intruded upon the solitude of the plaintiff, either physically or otherwise? AND
2) Is there evidence that the intrusion was into a private place of the plaintiff from which the plaintiff had a reasonable expectation that the defendant should be excluded? AND
3) Is there evidence that the defendant's intention in intruding was to gather highly confidential information which would not be available through normal enquiry or observation? AND
4) Is there evidence that this intrusion would be highly offensive to a reasonable person?
CALIFORNIA UNREASONABLE INTRUSION CASELAW: See
SHULMAN v. GROUP W PRODUCTIONS, INC., 18 Cal. 4th 200 (Cal. Sup. Ct. 1998)
MILLER v. NBC, 187 Cal. App. 3d 1463 (Cal. Ct. of Appeals 1986)
2. INVASION OF PRIVACY 2 - MISAPPROPRIATION OF IDENTITY - 2 part test
1) Is there evidence that the plaintiff's name or picture has been taken and used by the defendant? AND
2) Is there evidence that the defendant took and used the plaintiff's name or picture for their own business, commercial or financial benefit, OR is there evidence that the defendant took advantage of the plaintiff's reputation for their own personal gain?
3. INVASION OF PRIVACY 3 - PUBLICITY OF PRIVATE LIFE - 3 part test
1) Is there evidence that the defendant publicized true and accurate details of the plaintiff's private life? AND
2) Is there evidence that the effect of such publication would be highly offensive to a reasonable person? AND
3) Is there evidence that the information published was not of legitimate public concern?
4. INVASION OF PRIVACY 4 - FALSE LIGHT INVASION OF PRIVACY - 4 part test
1) Is there evidence that the defendant publicized inaccurate details of the plaintiff's private life? AND
2) Is there evidence that the effect of such publication would be highly offensive to a reasonable person? AND
3) Is there evidence that the information published was not of legitimate public concern? AND
4) Is there evidence that the defendant knew that the information they published was not accurate, OR did they act with reckless disregard as to whether the information published was true or not?
IX. IS THERE A TORT OF INTENTIONAL OR RECKLESS INFLICTION OF EMOTIONAL DISTRESS? - 4 part test
1) Is there evidence that the defendant's conduct was intolerable, shocking, indecent, extreme and outrageous, going beyond all normal bounds of decency? AND
2) Is there evidence that the conduct was such as would cause severe emotional anguish or distress to any reasonable person? AND
3) Is there evidence that the defendant knew that their conduct would cause severe emotional anguish or distress to the plaintiff, OR that the defendant acted with reckless disregard as to whether their conduct would cause the plaintiff severe emotional anguish or distress or not? AND
4) Is there evidence that the defendant's conduct caused actual severe emotional anguish or distress to the plaintiff, so much so that the plaintiff sought medical aid?
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(E) FEDERAL DEFINITION OF "ELECTRONIC COMMUNICATIONS" USED BY CALIFORNIA STATE LAW: 18 USCS § 2510(12).
UNITED STATES CODE
TITLE 18. CRIMES AND CRIMINAL PROCEDURE
PART I. CRIMES
CHAPTER 119. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND INTERCEPTION OF ORAL COMMUNICATIONS
18 USCS § 2510 - Definitions
(12) "electronic communication" means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce, but does not include--
(A) any wire or oral communication;
(B) any communication made through a tone-only paging device;
(C) any communication from a tracking device (as defined in section 3117 of this title); or
(D) electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds;
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X. IS THERE A CRIME OF MAKING EXTORTION AND THREATS IN INTERSTATE COMMUNICATIONS?
18 USCS § 875. Crimes-Extortion and Threats-Interstate Communications
5 Part Test
1) Is there evidence that the defendant communicated a demand or request for a ransom or reward for the release of any kidnapped person? OR
2) Is there evidence that the defendant communicated a threat to kidnap or injure any person, with the intent to extort money or any other thing of value from the plaintiff? OR
3) Is there evidence that the defendant communicated a threat to kidnap or injure any person? OR
4) Is there evidence that the defendant communicated a threat to injure the property or reputation of the plaintiff or of another or the reputation of a deceased person or any threat to accuse the plaintiff or any other person of a crime, with the intent to extort money or any other thing of value from the plaintiff? AND
5) Is there evidence that the communications take place in interstate or foreign commerce?
CASE LAW FOR EXTORTION AND THREATS IN INTERSTATE COMMUNICATIONS. See:
WHITNEY v. CALIFORNIA, 274 U.S. 357 (1927)
WATTS v. UNITED STATES, 394 U.S. 705 (1969)
UNITED STATES v. KELNER, 534 F2d 1020 (1976)
R.A.V. v. CITY OF ST. PAUL, 505 U.S. 377 (1992)
UNITED STATES v. BAKER, 890 F. Supp. 1375 (1995).
UNITED STATES v. ALKHABAZ, 104 F.3d 1492 (1997).
XI. IS THERE A CRIME OF INTERSTATE STALKING?
18 USCS § 2261A. Crimes-Domestic Violence and Stalking-Interstate Stalking
3 Part Test
1) Is there evidence that the defendant travelled across a state line? AND
2) Is there evidence that the defendant intended to injure or harass the plaintiff? AND
3) Is there evidence that in the course of, or as a result of, such travel the defendant placed the plaintiff in reasonable fear of their life, or of serious bodily injury, or of the death or serious bodily injury to a member of the plaintiff's immediate family?
CASE LAW FOR INTERSTATE STALKING. See:
UNITED STATES v. YOUNG, 1999 U.S. App. LEXIS 32721 (4th Cir. 1999)
XII. IS THERE A CRIME OF MAKING OBSCENE OR HARASSING ELECTRONIC COMMUNICATIONS?
47 USCS § 223. Obscene or Harassing Telephone Calls in the District of Columbia or in Interstate or Foreign Communications
4 Part Test
1) Is there evidence that the defendant knowingly used an electronic communications device to make and then transmit a communication which is obscene, lewd, lascivious, or filthy, AND with intent to annoy, abuse, threaten, or harass another person? OR
2) Is there evidence that the defendant made a telephone call or used a telecommunications device, whether or not conversation or communication ensued, without disclosing their identity AND with intent to annoy, abuse, threaten, or harass any person at the called number or who received the communications? OR
3) Is there evidence that the defendant made or caused to be made the telephone of another repeatedly or continuously to ring, AND with intent to harass any person at the called number? OR
4) Is there evidence that the defendant made repeated telephone calls or repeatedly initiated communication with a telecommunications device, during which conversation or communication ensued, AND with the intent solely to harass any person at the called number or who received the communication?
CASE LAW FOR OBSCENE OR HARASSING ELECTRONIC COMMUNICATIONS. See:
UNITED STATES v LAMPLEY, 573 F2D 783, (1978)
UNITED STATES v DARSEY, 342 F Supp 311, (1972)
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(G) STATUTORY AND OTHER ENFORCEMENT PROBLEMS RELATING TO ELECTRONIC OR ONLINE HARASSMENT
1) "Credible Threats"
One of the first problems applying general harassment laws to cyberspace is that many harassment laws require, for a conviction, the presence of what is called a "Credible Threat". A threat made to physically attack a person, that comes from another part of the country, or even from another country altogether, would be hard to prove "credible" in a court of law, as the likelihood of someone traveling thousands of miles to physically attack someone could be argued to be slim.
One interesting aspect of Credible Threat is that if a person is threatened online, they have no way of knowing if the person can carry it out or not. For example, most people who receive threats online imagine their harasser to be large and powerful. But in fact the threat may come from a child who does not really have any means of carrying out the physical threats made. Statutes usually address this by stating that it doesn't matter if the harasser is not capable of carrying out the threats made - it is enough that the target believes the threat to be credible - and online threats made by children or teens against adults can be considered credible due to the anonymity of the sender.
Statutes also stress that the plaintiff must not be an "eggshell plaintiff", i.e., the standard is the reasonable person. The harassment must be such that a reasonable person would be placed in fear for their physical safety. Many online who cry "harassment" are in reality over-sensitive, and are over-reacting to what is basically an angry argument or "flame war". The nature of online communications facilitates a high level of abusive discussion, partly because the speaker does not have to suffer the immediate consequences of such rudeness. People say online things that would start a fight if they were said face to face. Users of online communications, especially those who engage in discussions or debates on controversial topics, do therefore need to be mentally prepared for a higher level of abuse and stronger language.
The key case for credible threats in online communications is the Jake Baker case: UNITED STATES v. BAKER, 890 F. Supp. 1375 (Michigan Dist. Ct. 1995).
The Baker case is considered a seminal cyber-stalking case, focusing as it does on "true threat" stalking analysis. Baker was charged with five counts of transmitting threats to injure or kidnap another, in e-mail messages transmitted via the Internet. The court found for Baker, and this holding was affirmed on appeal: UNITED STATES v. ALKHABAZ, 104 F.3d 1492 (6th Cir. 1997).
In Baker, the defendant posted a story to an Internet newsgroup entitled "alt.sex.stories." The story graphically described the torture, rape, and murder of a woman who was given the name of a classmate of Baker's at the University of Michigan. The "alt.sex.stories" newsgroup to which Baker's story was posted is an electronic bulletin board, the contents of which are publicly available via the Internet. Baker also conducted an email correspondence with an online friend, in which both parties discussed abducting, raping, torturing and murdering young girls.
Baker was charged with several counts of violating 18 USCS § 875(c), namely that he transmitted threats in interstate communications to both kidnap and harm another person.
Baker filed a motion seeking dismissal of the charges. He contended that application of 18 U.S.C. § 875(c) to his story and to email transmissions between himself and his friend where they fantasized together about kidnapping and killing young girls, pushed the boundaries of the statute beyond the limits of the First Amendment. The government responded that the motion must be denied because the First Amendment does not protect "true threats," and because whether a specific communication constitutes a true threat was a question for the jury.
The Court referred to United States v. Kelner, 534 F.2d 1020 (1976), where the Second Circuit had commented on a seminal "true threat" case, that of Watts v. United States, 394 U.S. 705, (1969). The Court quoted:
"The purpose and effect of the Watts constitutionally-limited definition of the term "threat" is to insure that only unequivocal, unconditional and specific expressions of intention immediately to inflict injury may be punished--only such threats, in short, as are of the same nature as those threats which are "properly punished every day under statutes prohibiting extortion, blackmail and assault without consideration of First Amendment issues. ... So long as the threat on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution, the statute may properly be applied. This clarification of the scope of 18 U.S.C. § 875(c) is, we trust, consistent with a rational approach to First Amendment construction which provides for governmental authority in instances of inchoate conduct, where a communication has become "so interlocked with violent conduct as to constitute for all practical purposes part of the [proscribed] action itself." Baker, 890 F. Supp., at 1382.
The Court found that evaluating a statement charged under 18 U.S.C. § 875(c) in light of its foreseeable recipients and how they might react was consistent with the aims of the statute and the First Amendment:
"In the case of a coercive or extortionate threat, the maker of the statement obviously cannot achieve his or her end if the recipient of the statement does not take it as expressing a serious intention to carry out the threatened acts. If the coercive or extortionate threat is likely to be taken seriously by its recipient, then the threat is "so interlocked with violent conduct as to constitute for all practical purposes part of the [proscribed] action itself." [Quoting Kelner, 534 F.2d at 1027]. A communication containing an alleged non-coercive threat may be regulated consonant with the First Amendment, under the analysis in R.A.V. v. City of St. Paul, 505 U.S. 377, 120 L. Ed. 2d 305, 321, 112 S. Ct. 2538 (1992), in order to "protect[] individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur." If the alleged threat would not be interpreted by its foreseeable recipients as a serious expression of an intention to do the "threatened" acts, it does not implicate fear of violence or the disruption that fear engenders, and does not suggest a real possibility that the "threatened" violence will occur. The statement thus would not be a "true threat" for the purposes of the First Amendment. " Id., at 1384-1385.
Quoting Justice Brandeis from Whitney v. California, 274 U.S. 357, 376, 71 L. Ed. 1095, 47 S. Ct. 641 (1927), the Court rejected the government's charges, commenting:
"Fear of serious injury cannot alone justify suppression of free speech. . . To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent."
2) "Following"
Many of the general harassment and stalking laws in the USA originally required that the stalker be physically following their target in order to be convicted of stalking - another aspect of the law which simply does not apply in cyberspace. By definition a stalker online is not following their target physically - they are stalking/following electronically - While many stalking laws have been modified to address this issue, there are still state stalking laws that have yet to be updated to encompass electronic harassment.
3) Preserving of evidence
Preservation of evidence is certainly an issue when it comes to harassment. Although harassment online usually leaves an electronic trail, the trail leads to a computer rather than an individual and establishing who was using that computer terminal at that particular time is not easy. While networks and internet service providers keep logs of who is connecting at what time, these logs are not kept forever. Indeed many organizations routinely delete logs every 48 hours, which means there is not enough time for law enforcement to perceive a crime and obtain the necessary court order to obtain logs and customer information from the service provider.
Another issue regarding evidence is that harassment targets often destroy evidence when they receive it. The initial response is often to delete electronic files rather than to start downloading them for future reference in a possible harassment or stalking case. Even evidence that is preserved is open to challenge in court. System logs, emails, chat logs etc are all simple text files, all of which are easily editable. Therefore when presented in court they are open to challenges over authenticity by expert witnesses and defense lawyers.
LAW REVIEW ARTICLES ON INTERNET RELATED EVIDENCE
The John Marshall Journal of Computer & Information Law, Winter, 1999, 17 J. Marshall J. Computer & Info. L. 411:
COMPUTERS AND THE DISCOVERY OF EVIDENCE - A NEW DIMENSION TO CIVIL PROCEDURE, by MARK D. ROBINS
4) Free speech Issues
Another problem arising when trying to apply laws to harassment type behavior is that in America and other countries there are laws granting freedom of speech and there are laws forbidding harassment. When does freedom of speech become harassment? The California Civil Code section on stalking and harassment comments, for example:
"This section shall not be construed to impair any constitutionally protected activity, including, but not limited to, speech, protest, and assembly." California Civil Code § 1708.7(f).
Laws forbidding harassment protect our security. Laws protecting free speech protect our freedom. One of the problems facing any society is that an increase in freedom is usually accompanied by a corresponding decrease in security, while an increase in security usually threatens our freedom. Each society then, in its laws, has to find a balance between security and freedom.
Regarding cyberspace, the central issue appears to be whether online communications are essentially public or private in their nature. If they are seen as public places then online stalkers can claim free speech rights as a defense of their harassment (their right to speak their mind in a public place). If cyberspace is deemed as private then free speech laws are weakened and harassment laws strengthened correspondingly. In reality, some parts of online communications are public and others private. It is certainly true that harassment via email gives the stalking target a much stronger case than harassment in a Usenet Newsgroup or using the World Wide Web, because email is an inherently more private method of online communications than Usenet or WWW, and therefore makes better evidence in court. Indeed in the Baker "true threat" case court held that Baker's private emails to his friend regarding the kidnapping and torturing of young girls could not be a true threat to the public at large, because it was a private communication.
For Americans a large amount of speech is protected by First Amendment Constitutional rights, and attempts to regulate this speech online has already run afoul of the Supreme Court. See ACLU v. RENO, 929 F. Supp. 824 (1996).
Finally, under the "Fighting Words" and "Hostile Audience" doctrines of First Amendment jurisprudence, the government may act to restrict speech if the speech constitutes "Fighting Words". Fighting Words means speech usually intended to be a personal insult and directed to a specific person, which by their very utterance inflict injury and and tend to incite an immediate breach of the peace. Fighting Words are not protected under the First Amendment because their slight social value is outweighed by the government's compelling interest in social order. See CHAPLINSKY v NEW HAMPSHIRE, 315 U.S. 568 (1942), COHEN v CALIFORNIA, 403 U.S. 15 (1971), FEINER v NEW YORK, 340 U.S. 315 (1951) and COX v LOUISIANA, 377 U.S. 288 (1965). The remote distance of online communications makes it very difficult to prove an imminent danger of a breach of the peace when one person communicates electronic "fighting words" to another.
5) International and Internet Jurisdiction Issues
The Internet is a network of millions of computers from every country in the world all linked together. This makes the issue of legal jurisdiction extremely difficult for Law Enforcement. While there are wide International Agreements regarding some issues (for example the International trade and exploitation of children via sexual abuse, child prostitution and sex tourism), Harassment is defined differently in different countries (and in some countries is not defined at all).
This means that an American person being harassed online by someone who lives in Australia is immediately faced with a legal problem. Clearly the laws of USA do not apply to a person's conduct in Australia. But the victim of the harassment does not know Australian Laws, nor can he/she easily travel to that country to give evidence against an abuser if a case ever comes to trial. It is also extremely unlikely that the American government would attempt to extradite an Australian National for sending abusive or threatening email to an American citizen.
Some countries' laws permit a wider range of abusive activity than other countries. Some of kinds of harassment activities that are legal in the USA (i.e. protected by the First Amendment as Free Speech) are illegal under European Law (for example the use of the Nazi Swastika symbol, and incitement to racial hatred). A European could therefore be illegally harassed and abused by an American stalker via the internet, who in fact is breaking no US laws whatsoever.
The United Nations Declaration on Human Rights is an International Agreement signed by all member States of the UN (currently 185 in number). Two of the Articles contained in the Universal Declaration on Human Rights are useful to review as they both impact on harassment. They are Articles 12 and 19.
Article 12: No one shall be subject to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
That both of these Articles define basic and universal human rights indicates the difficulties for legislators and Law Enforcement officers in dealing with harassment actions that occupy the gray area between Article 12 and Article 19. And since different countries define these concepts differently, International electronic harassment is a legislative minefield for all concerned. In any case, the United Nations Declaration is not an Internationally binding set of Laws.
LAW REVIEW ARTICLES ON INTERNET JURISDICTION
Albany Law Journal of Science & Technology
9 Alb. L.J. Sci. & Tech. 375, (1999)
COMMENT: HATE SPEECH, CIVIL RIGHTS, AND THE INTERNET: THE JURISDICTIONAL AND HUMAN RIGHTS NIGHTMARE, by Michael L. Siegel
Albany Law Journal of Science & Technology
6 Alb. L.J. Sci. & Tech. 339, (1996)
COMMENT: JURISDICTION AND THE INTERNET: FUNDAMENTAL FAIRNESS IN THE NETWORKED WORLD OF CYBERSPACE , by Richard S. Zembek
6) Difficulties in identifying the person harassing you online
Just as it is difficult to gather evidence electronically in internet harassment situations, it is also difficult to even identify where the harassment is coming from. Sophisticated harassers online log anonymously onto remote computer servers thousands of miles away from where they live. Using these servers as launch points for their attacks, they are protected from identification because the electronic trail leads only as far as the remote launch point. Large scale electronic wars are waged in this manner, causing personal problems as well as commercial losses.
A person harassed by email has the email headers form which to identify the harasser. If the harasser is skilled, and is using a chain of anonymous remailers, there is no possible way to identify who the message originated from.
A person harassed electronically, e.g. by denial of service attacks, faces a similar problem. All they have at the recipient end if they are running protection software, is an IP address, which is a 4 digit number identifying the source of the hostile signal. Even if they are skilled enough to trace back the signal to the originating IP number, thereby identifying a specific computer somewhere in the world from which the attack was launched, they still have no idea who was using that IP at that precise moment. Skilled attackers will have cleverly masked their true origin, relaying their attacks through a chain of servers, and sometimes setting up remote attack devices that operate on timers, so that when the attack is launched, the person responsible has a cast iron alibi - they literally "were not there" at the time of the crime committed.
_________________________
(H) APPENDIX: STATUTES IN DETAIL
CALIFORNIA HARASSMENT STATUTES
1) California Penal Code § 646.9 - Stalking
(a) Any person who willfully, maliciously, and repeatedly follows or harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family, is guilty of the crime of stalking, punishable by imprisonment in a county jail for not more than one year or by a fine of not more than one thousand dollars ($ 1,000), or by both that fine and imprisonment, or by imprisonment in the state prison.
(b) Any person who violates subdivision (a) when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior described in subdivision (a) against the same party, shall be punished by imprisonment in the state prison for two, three, or four years.
(c) Every person who, having been convicted of a felony under this section, commits a second or subsequent violation of this section shall be punished by imprisonment in the state prison for two, three, or four years.
(d) In addition to the penalties provided in this section, the sentencing court may order a person convicted of a felony under this section to register as a sex offender pursuant to subparagraph (E) of paragraph (2) of subdivision (a) of Section 290.
(e) For the purposes of this section, "harasses" means a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose. This course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person.
(f) For purposes of this section, "course of conduct" means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of "course of conduct."
(g) For the purposes of this section, "credible threat" means a verbal or written threat, including that performed through the use of an electronic communication device, or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family. It is not necessary to prove that the defendant had the intent to actually carry out the threat. The present incarceration of a person making the threat shall not be a bar to prosecution under this section.
(h) For purposes of this section, the term "electronic communication device" includes, but is not limited to, telephones, cellular phones, computers, video recorders, fax machines, or pagers. "Electronic communication" has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.
(i) This section shall not apply to conduct that occurs during labor picketing.
(j) If probation is granted, or the execution or imposition of a sentence is suspended, for any person convicted under this section, it shall be a condition of probation that the person participate in counseling, as designated by the court. However, the court, upon a showing of good cause, may find that the counseling requirement shall not be imposed.
(k) The sentencing court also shall consider issuing an order restraining the defendant from any contact with the victim, that may be valid for up to 10 years, as determined by the court. It is the intent of the Legislature that the length of any restraining order be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family.
(l) For purposes of this section, "immediate family" means any spouse, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.
(m) The court shall consider whether the defendant would benefit from treatment pursuant to Section 2684. If it is determined to be appropriate, the court shall recommend that the Department of Corrections make a certification as provided in Section 2684. Upon the certification, the defendant shall be evaluated and transferred to the appropriate hospital for treatment pursuant to Section 2684.
2) California Penal Code § 653m - Obscene, Threatening or Annoying Communications
(a) Every person who, with intent to annoy, telephones or makes contact by means of an electronic communication device with another and addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family, is guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith.
(b) Every person who makes repeated telephone calls or makes repeated contact by means of an electronic communication device with intent to annoy another person at his or her residence, is, whether or not conversation ensues from making the telephone call or electronic contact, guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith.
(c) Every person who makes repeated telephone calls or makes repeated contact by means of an electronic communication device with the intent to annoy another person at his or her place of work is guilty of a misdemeanor punishable by a fine of not more than one thousand dollars ($ 1,000), or by imprisonment in a county jail for not more than one year, or by both that fine and imprisonment. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith. This subdivision applies only if one or both of the following circumstances exist:
(1) There is a temporary restraining order, an injunction, or any other court order, or any combination of these court orders, in effect prohibiting the behavior described in this section.
(2) The person makes repeated telephone calls or makes repeated contact by means of an electronic communication device with the intent to annoy another person at his or her place of work, totaling more than 10 times in a 24-hour period, whether or not conversation ensues from making the telephone call or electronic contact, and the repeated telephone calls or electronic contacts are made to the workplace of an adult or fully emancipated minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the person has a child or has had a dating or engagement relationship or is having a dating or engagement relationship.
(d) Any offense committed by use of a telephone may be deemed to have been committed where the telephone call or calls were made or received. Any offense committed by use of an electronic communication device or medium, including the Internet, may be deemed to have been committedwhen the electronic communication or communications were originally sent or first viewed by the recipient.
(e) Subdivision (a), (b), or (c) is violated when the person acting with intent to annoy makes a telephone call requesting a return call and performs the acts prohibited under subdivision (a), (b), or (c) upon receiving the return call.
(f) If probation is granted, or the execution or imposition of sentence is suspended, for any person convicted under this section, the court may order as a condition of probation that the person participate in counseling.
(g) For purposes of this section, the term "electronic communication device" includes, but is not limited to, telephones, cellular phones, computers, video recorders, fax machines, or pagers. "Electronic communication" has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.
3) California Penal Code § 422 - Punishment for (Terrorist) Threats
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.
For the purposes of this section, "immediate family" means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.
"Electronic communication device" includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. "Electronic communication" has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.
4) California Civil Code § 1708.7 - Stalking
(a) A person is liable for the tort of stalking when the plaintiff proves all of the following elements of the tort:
(1) The defendant engaged in a pattern of conduct the intent of which was to follow, alarm, or harass the plaintiff. In order to establish this element, the plaintiff shall be required to support his or her allegations with independent corroborating evidence.
(2) As a result of that pattern of conduct, the plaintiff reasonably feared for his or her safety, or the safety of an immediate family member. For purposes of this paragraph, "immediate family" means a spouse, parent, child, any person related by consanguinity or affinity within the second degree, or any person who regularly resides, or, within the six months preceding any portion of the pattern of conduct, regularly resided, in the plaintiff's household.
(3) One of the following:
(A) The defendant, as a part of the pattern of conduct specified in paragraph (1), made a credible threat with the intent to place the plaintiff in reasonable fear for his or her safety, or the safety of an immediate family member and, on at least one occasion, the plaintiff clearly and definitively demanded that the defendant cease and abate his or her pattern of conduct and the defendant persisted in his or her pattern of conduct.
(B) The defendant violated a restraining order, including, but not limited to, any order issued pursuant to Section 527.6 of the Code of Civil Procedure, prohibiting any act described in subdivision (a).
(b) For the purposes of this section:
(1) "Pattern of conduct" means conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of "pattern of conduct."
(2) "Credible threat" means a verbal or written threat, including that communicated by means of an electronic communication device, or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct, made with the intent and apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family.
(3) "Electronic communication device" includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. "Electronic communication" has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.
(4) "Harass" means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, torments, or terrorizes the person, and which serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person.
(c) A person who commits the tort of stalking upon another is liable to that person for damages, including, but not limited to, general damages, special damages, and punitive damages pursuant to Section 3294.
(d) In an action pursuant to this section, the court may grant equitable relief, including, but not limited to, an injunction.
(e) The rights and remedies provided in this section are cumulative and in addition to any other rights and remedies provided by law.
(f) This section shall not be construed to impair any constitutionally protected activity, including, but not limited to, speech, protest, and assembly.
5) California Civil Code § 45 - Defamation 1: Libel
Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.
6) California Civil Code § 46 - Defamation 2: Slander
Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:
1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;
2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;
3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;
4. Imputes to him impotence or a want of chastity; or
5. Which, by natural consequence, causes actual damage.
7) California Civil Code § 51.9 - Sexual Harrassment
(a) A person is liable in a cause of action for sexual harassment under this section when the plaintiff proves all of the following elements:
(1) There is a business, service, or professional relationship between the plaintiff and defendant. Such a relationship may exist between a plaintiff and a person, including, but not limited to, any of the following persons:
(A) Physician, psychotherapist, or dentist. For purposes of this section, "psychotherapist" has the same meaning as set forth in paragraph (1) of subdivision (c) of Section 728 of the Business and Professions Code.
(B) Attorney, holder of a master's degree in social work, real estate agent, real estate appraiser, accountant, banker, trust officer, financial planner loan officer, collection service, building contractor, or escrow loan officer.
(C) Executor, trustee, or administrator.
(D) Landlord or property manager.
(E) Teacher.
(F) A relationship that is substantially similar to any of the above.
(2) The defendant has made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe.
(3) There is an inability by the plaintiff to easily terminate the relationship .
(4) The plaintiff has suffered or will suffer economic loss or disadvantage or personal injury, including, but not limited to, emotional distress or the violation of a statutory or constitutional right, as a result of the conduct described in paragraph (2).
(b) In an action pursuant to this section, damages shall be awarded as provided by subdivision (b) of Section 52.
(c) Nothing in this section shall be construed to limit application of any other remedies or rights provided under the law.
(d) The definition of sexual harassment and the standards for determining liability set forth in this section shall be limited to determining liability only with regard to a cause of action brought under this section.
8) California Code of Civil Procedure § 527.6 - Injunctions to Prevent Harassment.
(a) A person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an injunction prohibiting harassment as provided in this section.
(b) For the purposes of this section, "harassment" is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff.
As used in this subdivision:
(1) "Unlawful violence" is any assault or battery, or stalking as prohibited in Section 646.9 of the Penal Code, but shall not include lawful acts of self-defense or defense of others.
(2) "Credible threat of violence" is a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose.
(3) "Course of conduct" is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, fax, or computer e-mail. Constitutionally protected activity is not included within the meaning of "course of conduct."
(c) Upon filing a petition for an injunction under this section, the plaintiff may obtain a temporary restraining order in accordance with Section 527, except to the extent this section provides a rule that is inconsistent. A temporary restraining order may be issued with or without notice upon an affidavit that, to the satisfaction of the court, shows reasonable proof of harassment of the plaintiff by the defendant, and that great or irreparable harm would result to the plaintiff. In the discretion of the court, and on a showing of good cause, a temporary restraining order issued under this section may include other named family or household members who reside with the plaintiff. A temporary restraining order issued under this section shall remain in effect, at the court's discretion, for a period not to exceed 15 days, or, if the court extends the time for hearing under subdivision (d), not to exceed 22 days, unless otherwise modified or terminated by the court.
(d) Within 15 days, or, if good cause appears to the court, 22 days from the date the temporary restraining order is issued, a hearing shall be held on the petition for the injunction. The defendant may file a response that explains, excuses, justifies, or denies the alleged harassment or may file a cross-complaint under this section. At the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment. An injunction issued pursuant to this section shall have a duration of not more than three years. At any time within the three months before the expiration of the injunction, the plaintiff may apply for a renewal of the injunction by filing a new petition for an injunction under this section.
(e) Nothing in this section shall preclude either party from representation by private counsel or from appearing on the party's own behalf.
(f) In a proceeding under this section where there are allegations or threats of domestic violence, a support person may accompany a party in court and, where the party is not represented by an attorney, may sit with the party at the table that is generally reserved for the party and the party's attorney. The support person is present to provide moral and emotional support for a person who alleges he or she is a victim of domestic violence. The support person is not present as a legal adviser and shall not give legal advice. The support person shall assist the person who alleges he or she is a victim of domestic violence in feeling more confident that he or she will not be injured or threatened by the other party during the proceedings where the person who alleges he or she is a victim of domestic violence and the other party must be present in close proximity. Nothing in this subdivision precludes the court from exercising its discretion to remove the support person from the courtroom if the court believes the support person is prompting, swaying, or influencing the party assisted by the support person.
(g) Upon filing of a petition for an injunction under this section, the defendant shall be personally served with a copy of the petition, temporary restraining order, if any, and notice of hearing of the petition. Service shall be made at least five days before the hearing. The court may for good cause, on motion of the plaintiff or on its own motion, shorten the time for service on the defendant.
(h) The court shall order the plaintiff or the attorney for the plaintiff to deliver a copy of each temporary restraining order or injunction, or modification or termination thereof, granted under this section, by the close of the business day on which the order was granted, to the law enforcement agencies within the court's discretion as are requested by the plaintiff. Each appropriate law enforcement agency shall make available information as to the existence and current status of these orders to law enforcement officers responding to the scene of reported harassment.
An order issued under this section shall, on request of the plaintiff, be served on the defendant, whether or not the defendant has been taken into custody, by any law enforcement officer who is present at the scene of reported harassment involving the parties to the proceeding. The plaintiff shall provide the officer with an endorsed copy of the order and a proof of service that the officer shall complete and send to the issuing court.
Upon receiving information at the scene of an incident of harassment that a protective order has been issued under this section, or that a person who has been taken into custody is the subject of an order, if the protected person cannot produce a certified copy of the order, a law enforcement officer shall immediately attempt to verify the existence of the order.
If the law enforcement officer determines that a protective order has been issued, but not served, the officer shall immediately notify the defendant of the terms of the order and shall at that time also enforce the order. Verbal notice of the terms of the order shall constitute service of the order and is sufficient notice for the purposes of this section and for the purposes of Section 273.6 and subdivision (g) of Section 12021 of the Penal Code.
(i) The prevailing party in any action brought under this section may be awarded court costs and attorney's fees, if any.
(j) Any willful disobedience of any temporary restraining order or injunction granted under this section is punishable pursuant to Section 273.6 of the Penal Code.
(k) This section does not apply to any action or proceeding covered by Title 1.6C (commencing with Section 1788) of the Civil Code or by Division 10 (commencing with Section 6200) of the Family Code. Nothing in this section shall preclude a plaintiff's right to use other existing civil remedies.
(l) The Judicial Council shall promulgate forms and instructions therefore, and rules for service of process, scheduling of hearings, and any other matters required by this section. The petition and response forms shall be simple and concise.
(m) A temporary restraining order or injunction relating to harassment or domestic violence issued by a court pursuant to this section shall be issued on forms adopted by the Judicial Council of California and that have been approved by the Department of Justice pursuant to subdivision (i) of Section 6380 of the Family Code. However, the fact that an order issued by a court pursuant to this section was not issued on forms adopted by the Judicial Council and approved by the Department of Justice shall not, in and of itself, make the order unenforceable.
(n) Information on any temporary restraining order or injunction relating to harassment or domestic violence issued by a court pursuant to this section shall be transmitted to the Department of Justice in accordance with subdivision (b) of Section 6380 of the Family Code.
1) 18 USCS § 875 (2000)
[TITLE 18. CRIMES AND CRIMINAL PROCEDURE
PART I. CRIMES
CHAPTER 41. EXTORTION AND THREATS]
§ 875. Interstate communications
(a) Whoever transmits in interstate or foreign commerce any communication containing any demand or request for a ransom or reward for the release of any kidnapped person, shall be fined under this title or imprisoned not more than twenty years, or both.
(b) Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than twenty years, or both.
(c) Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.
(d) Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.
*********************
2) 18 USCS § 2261A (2000)
[TITLE 18. CRIMES AND CRIMINAL PROCEDURE
PART I. CRIMES
CHAPTER 110A. DOMESTIC VIOLENCE AND STALKING]
§ 2261A. Interstate stalking
Whoever travels across a State line or within the special maritime and territorial jurisdiction of the United States with the intent to injure or harass another person, and in the course of, or as a result of, such travel places that person in reasonable fear of the death of, or serious bodily injury (as defined in section 1365(g)(3) of this title) to, that person or a member of that person's immediate family (as defined in section 115 of this title) shall be punished as provided in section 2261 of this title.
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3) 47 USCS § 223 (2000)
[TITLE 47. TELEGRAPHS, TELEPHONES, AND RADIOTELEGRAPHS
CHAPTER 5. WIRE OR RADIO COMMUNICATION
COMMON CARRIERS
COMMON CARRIER REGULATION - AKA THE "COMMUNICATIONS DECENCY ACT" OR "CDA"]
NOTE: 4 SECTIONS OF THIS STATUTE WERE FOUND UNCONSTITUTIONAL BY THE US SUPREME COURT. 3 SECTIONS WERE REMOVED AND 1 STATUTE WAS SLIGHTLY CHANGED. THE COURT REMOVED § 223 (a)(1)(B), § 223 (a)(2) and § 223 (d), AND MADE A CHANGE TO § 223 (a) (1) (A). THE REST OF THIS STATUTE, INCLUDING SECTIONS ADDRESSING HARASSMENT, REMAINS IN FORCE. THEREFORE IN THE STATUTE BELOW I HAVE REMOVED THE PARTS HELD UNCONSTITUTIONAL AND REPLACED THEM WITH THE SYMBOL <SNIP>.
§ 223. Obscene or harassing telephone calls in the District of Columbia or in interstate or foreign communications
(a) Whoever--
(1) in interstate or foreign communications--
(A) by means of a telecommunications device knowingly--
(i) makes, creates, or solicits, and
(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, [or] filthy,
<SNIP>
with intent to annoy, abuse, threaten, or harass another person;
<SNIP>
(C) makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications;
(D) makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; or
(E) makes repeated telephone calls or repeatedly initiates communication with a telecommunications device, during which conversation or communication ensues, solely to harass any person at the called number or who receives the communication,
<SNIP>
shall be fined under title 18, United States Code, or imprisoned not more than two years, or both.
(b) 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.
(c) Restriction on access to subscribers by common carriers; judicial
remedies respecting restrictions.
(1) A common carrier within the District of Columbia or within any State, or in interstate or foreign commerce, shall not, to the extent technically feasible, provide access to a communication specified in subsection (b) from the telephone of any subscriber who has not previously requested in writing the carrier to provide access to such communication if the carrier collects from subscribers an identifiable charge for such communication that the carrier remits, in whole or in part, to the provider of such communication.
(2) Except as provided in paragraph (3), no cause of action may be brought in any court or administrative agency against any common carrier, or any of its affiliates, including their officers, directors, employees, agents, or authorized representatives on account of--
(A) any action which the carrier demonstrates was taken in good faith to restrict access pursuant to paragraph (1) of this subsection; or
(B) any access permitted--
(i) in good faith reliance upon the lack of any representation by a provider of communications that communications provided by that provider are communications specified in subsection (b), or
(ii) because a specific representation by the provider did not allow the carrier, acting in good faith, a sufficient period to restrict access to communications described in subsection (b).
(3) Notwithstanding paragraph (2) of this subsection, a provider of communications services to which subscribers are denied access pursuant to paragraph (1) of this subsection may bring an action for a declaratory judgment or similar action in a court. Any such action shall be limited to the question of whether the communications which the provider seeks to provide fall within the category of communications to which the carrier will provide access only to subscribers who have previously requested such access.
<SNIP>
(e) In addition to any other defenses available by law:
(1) No person shall be held to have violated subsection (a) or (d) solely for providing access or connection to or from a facility, system, or network not under that person's control, including transmission, downloading, intermediate storage, access software, or other related capabilities that are incidental to providing such access or connection that does not include the creation of the content of the communication.
(2) The defenses provided by paragraph (1) of this subsection shall not be applicable to a person who is a conspirator with an entity actively involved in the creation or knowing distribution of communications that violate this section, or who knowingly advertises the availability of such communications.
(3) The defenses provided in paragraph (1) of this subsection shall not be applicable to a person who provides access or connection to a facility, system, or network engaged in the violation of this section that is owned or controlled by such person.
(4) No employer shall be held liable under this section for the actions of an employee or agent unless the employee's or agent's conduct is within the scope of his or her employment or agency and the employer (A) having knowledge of such conduct, authorizes or ratifies such conduct, or (B) recklessly disregards such conduct.
(5) It is a defense to a prosecution under subsection (a)(1)(B) or (d), or under subsection (a)(2) with respect to the use of a facility for an activity under subsection (a)(1)(B) that a person--
(A) has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in such subsections, which may involve any appropriate measures to restrict minors from such communications, including any method which is feasible under available technology; or
(B) has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number.
(6) The Commission may describe measures which are reasonable, effective, and appropriate to restrict access to prohibited communications under subsection (d). Nothing in this section authorizes the Commission to enforce, or is intended to provide the Commission with the authority to approve, sanction, or permit, the use of such measures. The Commission shall have no enforcement authority over the failure to utilize such measures. The Commission shall not endorse specific products relating to such measures. The use of such measures shall be admitted as evidence of good faith efforts for purposes of paragraph (5) in any action arising under subsection (d). Nothing in this section shall be construed to treat interactive computer services as common carriers or telecommunications carriers.
(f) (1) No cause of action may be brought in any court or administrative agency against any person on account of any activity that is not in violation of any law punishable by criminal or civil penalty, and that the person has taken in good faith to implement a defense authorized under this section or otherwise to restrict or prevent the transmission of, or access to, a communication specified in this section.
(2) No State or local government may impose any liability for commercial activities or actions by commercial entities, nonprofit libraries, or institutions of higher education in connection with an activity or action described in subsection (a)(2) or (d) that is inconsistent with the treatment of those activities or actions under this section: Provided, however, That nothing herein shall preclude any State or local government from enacting and enforcing complementary oversight, liability, and regulatory systems, procedures, and requirements, so long as such systems, procedures, and requirements govern only intrastate services and do not result in the imposition of inconsistent rights, duties or obligations on the provision of interstate services. Nothing in this subsection shall preclude any State or local government from governing conduct not covered by this section.
(g) Nothing in subsection (a), (d), (e), or (f) or in the defenses to prosecution under subsection (a) or (d) shall be construed to affect or limit the application or enforcement of any other Federal law.
(h) For purposes of this section--
(1) The use of the term "telecommunications device" in this section--
(A) shall not impose new obligations on broadcasting station licensees and cable operators covered by obscenity and indecency provisions elsewhere in this Act [47 USCS §§ 151 et seq.]; and
(B) does not include an interactive computer service.
(2) The term "interactive computer service" has the meaning provided in section 230(f)(2) [47 USCS § 230(f)(2)].
(3) The term "access software" means software (including client or server software) or enabling tools that do not create or provide the content of the communication but that allow a user to do any one or more of the following:
(A) filter, screen, allow, or disallow content;
(B) pick, choose, analyze, or digest content; or
(C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.
(4) The term "institution of higher education" has the meaning provided in section 101 of the Higher Education Act of 1965 [20 USCS § 1001].
(5) The term "library" means a library eligible for participation in State-based plans for funds under title III of the Library Services and Construction Act (20 U.S.C. 355e et seq.).
********************
4) 18 USCS 2510 (2000)
TITLE 18. CRIMES AND CRIMINAL PROCEDURE
PART I. CRIMES
CHAPTER 119. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND INTERCEPTION OF ORAL COMMUNICATIONS
§ 2510. Definitions
(12) "electronic communication" means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce, but does not include--
(A) any wire or oral communication;
(B) any communication made through a tone-only paging device;
(C) any communication from a tracking device (as defined in section 3117 of this title); or
(D) electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds;
© Copyright 2000, Colin Hatcher
I have found an additional case that I think is of interest for the Online Trouble section, because it involved both setting up a person to be flame bait and also addressed ISP indirect liability. It is:
Zeran v. America Online
An unidentified person posted messages to an AOL bulletin board supposedly from a person named Kenneth Zeran, advertizing bad taste slogan T-shirts relating to the recent Oklahoma bombing. The post published Zeran's name, email address and telephone number. Zeran thereafter received many telephone and email threats and hate messages. Zeran brought suit against America Online, Inc. ("AOL"), [ Zeran v. America Online, 958 F. Supp. 1124,(E.D. Va. 1997)] arguing that after he had reported the matter to them AOL unreasonably delayed in removing the defamatory messages posted by the unidentified third party onto AOL bulletin boards, refused to post retractions of those messages, and failed to screen for similar postings thereafter. The district court granted judgment for AOL on the grounds that the Internet Service Provider could not be held liable for the defamatory posts. On appeal the 4th Circuit affirmed [Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997)].
Zeran also brought suit against a radio station (KRXO) that also featured the advertisement and attributed it to him, and who had subsequently published his telephone number and urged its listeners to phone him up and complain. [See Zeran v. Diamond Broad., Inc., 19 F. Supp. 2d 1249 (1997)] In this suit he alleged defamation, false light invasion of privacy, intentional infliction of emotional distress and punitive damages claims. KRXO filed a counter motion for summary judgment, which the court granted. [Appealed and affirmed at Zeran v. Diamond Broad., Inc., 203 F.3d 714 (10th Cir. 2000)]
Students interested in the possibility of influencing stock by starting online rumors may want to look at the case of Cubby v Compuserve. Compuserve won on the grounds that they were a distributor not a publisher of information. Later events suggest that the "false" information that the plaintiff complained of may well have been true.
The Cornell case, in which anonymous parties forged an email purportedly from a Cornell administrator, sent it to a large number of recipients, and published a selection of the replies, arguably involves a tortious act under current law, at least in many states.
One legal category is a privacy tort involving the publicizing of wrongfully obtained information. Some relevant cases are:
Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971). Tort was deceitful intrusion, but damages included harm due to publication.
Barber v Time, Inc., 348 Mo. 1199, 159 S.W. 2d 291 (1942). Agents of the defendant forced their way into a hospital room, photographed the plaintiff, and published the photographs.
Sisis v. F-R Publ'g Corp., 113 F. 2d 806 (2d Cir. 1940), involved a New Yorker profile of a former child prodigy turned obsessive recluse. If access had been by deceit, the plaintiff might well have had a good case.
There is also a tort of publicizing private life, involving information, including true information, that would be highly offensive to a reasonable person and is not of legitimate public concern. Restatement 652D. A relevant case is:
Haynes v. Alfred A. Knopf, Inc., 8 F. 3d 1222 (7th Cir. 1993).
The question has been raised as to whether "outing" a homosexual might be tortious under this rule. Sipple v. Chronicle Publ'g Co., 154 Cal.App.3d 1040, 1049, 201 Cal. Rptr. 665, 670 (1984) involved a news story identifying the man who obstructed an attempt to assassinate President Ford as gay. The court found no liability, on the grounds that the purpose was not prying but newsworthy information.
A few cases find defendant liable for publishing truthful information injurious to defendant:
Melvin v. Reid, 112 Cal.App. 285, 297 P. 91 (1931).
Briscoe v. Reader's Digest Ass'n Inc., 4 Cal. 3d 529, 483 P. 2d 34, 93 Cal. Rptr. 866 (1971).
There also exists a tort of putting a person in a false light tort. It requires
(a) statements made to a substantial group of persons that
(b) put the matter in a false light, which
(c) would be highly offensive to a reasonable person; and
(d) the person responsible knew the information was false or acted with reckless disregard of its truth.
Which of these grounds of action would be relevant to the Cornell case? Aren't they all irrelevant in practice, given that the offenders acted anonymously?