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The Problems with Prosecuting Cyber Stalkers

Girl meets guy. Guy asks girl to add him on social media. Girl adds guy. Guy proceeds to insult and threaten girl, as well as stalk her every move online. Guy even threatens physical violence against girl in real life. Girl is terrified.

All of this sounds like a horror movie plot, but this has been the actual story of several cyberstalking interactions. According to a 2014 Pew report for online harassment, 40% of internet users surveyed have experienced some form of online harassment, whereas 73% have witnessed it occur to others.

Although there are many people who have either experienced or witnessed some form of online harassment, only 5% of people who experience any form of online harassment have reported it to a law enforcement agency. However, the Bureau of Statistics reports that approximately 1 in 4 stalking victims reported some form of cyberstalking such as e-mail (83%) or instant messaging (35%).

This begs the question as to why. Why do people refrain from reporting cyber-harassment or cyberstalking to the authorities or pursue legal action?

Online Harassment and Cyberstalking As a Gendered Problem

There are many forms of online harassment, but cyberstalking is one of the most severe. The National Conference of State Legislatures defines cyberstalking as “the use of the Internet, email or other electronic communications to stalk, and generally refers to a pattern of threatening or malicious behaviors.” Sanctions range from misdemeanors to felonies, depending on the state or federal statute.

The Pew report found that women from the ages of 18-24 experience more severe forms of online harassment at disproportionately high levels. Twenty-six percent of the young women surveyed have been cyberstalked, whereas only 8% of people who experienced online harassment in general were ever stalked.   Cyber Abuse

Many people will block the perpetrator from their social media accounts and pursue no legal action. For milder forms of online harassment, this usually resolves the problem. However, with severe forms of harassment like cyberstalking, there are many obstacles that may deter victims from pursuing a legal remedy. Given that most cyberstalking victims are young women, their lack of experience in dealing with legal authorities may discourage them from going to the police with the issue.

Prosecutorial Obstacles By Jurisdiction

State Laws

Although some states have enacted specific cyberstalking statutes, most states have tacked on an electronic communications element to their existing stalking laws. That means that for someone to successfully prosecute a cyber-stalker, they would need to prove every element of stalking beyond a reasonable doubt. This can be especially difficult, if threats and other behaviors are limited to internet activity.

On January 1, 2016, California will enact its own Electronic Communications Privacy Act (CalECPA) that will require law enforcement agencies to obtain a probable cause warrant before demanding personal data from internet service providers.

Although this legislation is considered a landmark digital privacy law, there are concerns that it may hinder law enforcement from investigating cyberstalking issues.

According to Pew’s Online Harassment report, “66% of internet users who have experienced online harassment said their most recent incident occurred on a social networking site or app.” CalECPA would require that probable cause for a warrant to obtain electronic data from an online service provider. Probable cause exists when there are sufficient facts and/or circumstances for a reasonable person to assume that a crime has been committed.

Fortunately, many internet service providers retain personal data for some length of time, so that a victim of cyberstalking could present evidence from emails, texts, or any other form of electronic communication. However, there is the risk that such data may be deleted or unavailable to show probable cause.

Federal Law

Cyberstalking was not fully addressed until recently. Before, there was no federal recourse for cyberstalking for adults. Federal statutes now include cyberstalking as a form of regular stalking, where a person is placed in reasonable fear of death or serious bodily injury and the behavior of the alleged stalker causes substantial emotional distress.

In 2013, the Violence Against Women Act (VAWA) was reauthorized and amended to include threats by electronic communications to its stalking section. VAWA allows someone to sue a perpetrator in federal court. VAWA also added stalking to its grant programs so that more funding can be used by states for the prevention of stalking and cyberstalking.

On November 12, Senator Al Franken introduced a bill called the Location Privacy Protection Act to ban cyberstalking apps on smartphone devices that can track the location data of other users’ cellphones. This bill is considered an important update to cyberstalking legislation because it addresses our contemporary dependency on smartphones and other portable devices.

International Law

The largest problem with working in an international jurisdiction is that many countries don’t actually recognize cyberstalking as an illegal offense. It can therefore be extremely difficult to prosecute someone overseas for cyberstalking itself. The best solution would be to find an attorney or other legal expert in that specific country’s criminal laws who can file the correct charges.

Since cyberstalking and other forms of online harassment are only recently addressed in US laws, there may be a stigma against reporting cyberstalking to law enforcement. Most advice given online for cyberstalking are self-help remedies, such as blocking the perpetrator or using “caution” when chatting with strangers online. As more cases are reported in the news for successful prosecution of cyberstalking, we may hope to see less obstacles in prosecuting cyber-stalkers in the future.

Closing the Loophole on Discrimination Against Disabled Americans

In most of the United States, the Americans with Disabilities Act helps people seek legal relief from disability discrimination without having to show that their disability was the only reason for the discrimination. One exception, however, exists in the Tenth Circuit Court of Appeals, which covers Colorado, Kansas, New Mexico, Utah, Wyoming, and Oklahoma. In that region, federal courts have held that disabled plaintiffs must show that their disability was the “sole cause” of discrimination. Now, a new Supreme Court case could change that.

The Case: Discrimination Due to HIV Status in an Oklahoma Prison

The case, Doe vs. Board of County Commissioners of Payne County, Oklahoma, is about an anonymous HIV-positive man who had a misunderstanding with police. Officers showed up to his house to investigate a hit-and-run accident because they saw that his car had “damage consistent with such an accident.” When they knocked on the door, Doe was startled and grabbed his gun. When Doe realized that the visitors were police, he placed the safety on his weapon, and lowered it. Despite his cooperation, Doe was arrested for obstruction and assault with a deadly weapon and eventually placed in the Payne County Detention Center.   ADA

At the jail, Doe was initially part of the general population. However, when his HIV-positive status was discovered, he was transferred to an isolation unit. In such a unit, prisoners are locked down for 23 hours a day, cannot have recreation time, attend religious services with others, do not have access to television, and may not use telephones or showers without permission. The prison’s log said that Doe was “Moved due to his HIV statuses.” Now, the prison says that this was only one of the factors in the move and the employee who made the log entry has claimed she thought there wasn’t enough room to list the other reasons. Doe “languished in the isolation unit for 47 consecutive days.” He was later released after pleading guilty to a misdemeanor: the remaining charges were dropped. He is now suing over his treatment in the facility.

The key provision of the ADA at stake here says that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”  Doe argues that he was discriminated against, and that this law does not say anything about his disability having to be the “sole” reason why he was placed in an isolation unit.

What Should the Outcome Be?

The Supreme Court should rule in favor of Doe to unify the law in the United States. All but the Tenth Circuit have come to the opposite conclusion for very good reasons, including the fact that the plain language of the law does not seem to require a “sole” cause of discrimination. Other courts have also looked at what Congress intended when they passed the ADA, and have concluded that they did not wish to make it overly difficult for plaintiffs to prove discrimination.

In general, the Tenth Circuit’s rule makes it too difficult for plaintiffs to get a fair outcome when they are discriminated against. Requiring disability to be the sole cause of discrimination requires people to guess at people’s motives, or to somehow know what people are thinking. In a case like Doe, it allows the defendants in a case to backtrack and fill in their motives. The more elaborate the excuse for discrimination is, the harder it will be to prove.

Requiring only one motivation for discrimination also has some odd outcomes, as one Third Circuit case pointed out. For example, if a person was not hired by an employer because he was disabled and because he was black, he could file a claim of race discrimination under title VII of the Civil Rights Act. However, he could not then file a claim under the ADA because his disability was not the sole reason for discrimination. A result like this would not make sense.

If this case is decided correctly, disabled plaintiffs all over the country can seek justice under the ADA in the same manner. If not, the ADA’s protections for the disabled will lose some of their power.

The Beginning of PreCrime?

What is Predictive Policing?

Predictive policing is an attempt to make police more proactive. Often, police react to crime by responding to 911 calls or arresting people who they see break the law. However, new technology allows police to prevent crime before it starts. Large amounts of data about past crimes are fed into computer programs that determine where and when (and sometimes with whom) the risk of crime increases.

Since TIME magazine called predictive policing one of the “50 Best Inventions of 2011,” more towns and cities are embracing this new technology.

Geographical Predictions

Predictive policing based on mapping has been very successful in combatting crimes like auto theft that occur frequently (and so create a lot of data) and follow certain patterns. Officers generally receive a map each day with highlighted areas to patrol when they are not responding to calls. In some places, patrolling the high-risk mapped areas is not mandatory. However, it is encouraged by departments because it gives officers more information.  PreCrime

Many U.S. cities contract with PredPol, a private company that takes crime data and uses a patented process to make predictions. In Santa Cruz, California, the police use the tool to map potential gang violence, batteries, aggravated assaults, drug crimes, and bike thefts. In Los Angeles, the police chose specific areas to experiment with Pred Pol and waited for the results to come in. In the Foothill area, the experiment was successful and property crimes fell by 12%. Now, the LAPD has adopted it in 14 out of 21 of its divisions. It is estimated that the prevention provided by this technology could save citizens $9 million dollars a year.  One critique is that the system does not work as well with crimes that don’t “have enough data points” or that involve “crimes of passion.” For these reasons, homicides are more difficult to predict on a map.

Individualized Predictions

Recent advances in predictive policing mean that it is also being used to target violent crime. Since violent crime typically involves individuals instead of property, it is no surprise that police departments are now tracking specific people as part of their “prediction” strategy. These predictions are often based in theories about criminal psychology. For example, the Chicago Police have developed a list of 400 people most likely, at the given time, to commit a violent crime. To do so, they use social media data, crime information, suspicious person reports, and 911-calls. However, this so-called “heat list” has led to criticisms by civil liberties groups like the ACLU. The risk is that predictive policing increases police scrutiny on individuals regardless of whether or not they have committed a crime.

Other jurisdictions are also embracing a more individualized risk model. In Maryland, for example, social service workers are teaming up with statisticians to predict which families will be most likely to seriously harm their children. Meanwhile, in Kansas City, the authorities have identified almost 1,000 people belonging to criminal groups and are targeting them specifically with interventions intended to curb violent crime.

What are the Criticisms of Predictive Policing?

While map-based predictive policing is certainly effective at deterring some types of crime, civil liberties activists are concerned that it may target residents of certain neighborhoods unfairly. If utilized in the wrong way, this type of policing may create a vicious cycle.

For example, racial profiling or increased patrolling of certain neighborhoods may lead to black or Hispanic individuals’ arrest for drug crimes at a higher rate than their white counterparts (who commit a similar number of those crimes). Data from these arrests may create a false impression that there is more of a “drug problem” in predominantly black or Hispanic neighborhoods, leading to increased patrols, more scrutiny, and more arrests. A similar problem may involve patrolling in “rich” versus “poor” neighborhoods.

Targeting individuals may be even more problematic. It sets up a new and invasive type of surveillance, not over neighborhoods in general, but over people in particular. Now, license plates are scanned, devices can track mobile phone signals, and surveillance cameras and tablets with facial-recognition technology are now available to police. This makes a very detailed level of tracking attainable, and moves us closer to a “Minority Report” world.

What is the Future of Predictive Policing?

Predictive policing holds great promise as a deterrent to certain types of crime. However, the use of predictive policing must continue to be scrutinized carefully so that it does not interfere with important civil rights. Many cities are now experimenting with this technology, so society will eventually know its effects, good and bad.

“Operation Boo” Prompts Halloween Lawsuit by Sex Offenders

What is Operation Boo?

Each year for the last 21 years, the California Department of Corrections and Rehabilitation (CDCR) implements “Operation Boo.” Operation Boo requires that some registered sex offenders on parole post signs on their front doors on Halloween saying “We Don’t Participate in Trick or Treating.” This can be required even of sex offenders who have never shown a tendency to victimize children. If sex offenders do not comply, they may face legal consequences.

Some San Diego-area sex offenders are now challenging this requirement. Advocates say that the signs pose a danger to sex offenders, making them “sitting ducks” for harassment or vigilantism. A lawsuit recently filed in federal court also claims that the sign requirement violates the First Amendment’s prohibition on compelled speech.

What is Compelled Speech?

Compelled speech occurs when the government forces a person to say something. The Supreme Court has stated that “[t]here is certainly some difference between compelled speech and compelled silence, but in the context of protected speech, the difference is without constitutional significance, for the First Amendment guarantees “freedom of speech,” a term necessarily comprising the decision of both what to say and what not to say.” In other words, freedom of speech means having a choice over what is communicated to others. In this case, the sex offenders feel that they have no choice but to post “We Don’t Participate in Trick or Treating,” in violation of their rights.  Operation Boo

However, not all compelled speech violates the constitution. The First Amendment is violated in cases where the government forces an individual to affirm a religious, political, or ideological cause. It is also violated where the government makes “an individual, as part of his daily life…to be an instrument for fostering public adherence to an ideological point of view that he finds unacceptable.” One interesting facet of this case may be whether or not the “Operation Boo” signs convey an ideological point of view (for example, that registered sex offenders are so dangerous that they need to be identified specially on Halloween).

Compelled Speech and Sex Offenders

Registered sex offenders are often treated differently than average citizens. Their behavior can be regulated in certain ways for community safety, particularly under Megan’s Law, a federal statute. Sex offenders are required to register and communities receive notice of their presence. It is also constitutional to restrict where certain high-risk sex offenders live and they may be prohibited from residing near schools, parks, or day care centers. Sex offenders who are on parole often have their location constantly monitored by GPS.

Some challenges to sex offender registration laws have been based on freedom of speech issues. However, as the 5th Circuit held recently in U.S. v. Arnold, sex offender registration and notification does not violate compelled speech.  “When the government, to protect the public, requires sex offenders to register their residence, it conducts an essential operation of government, just as it does when it requires individuals to disclose information for tax collection.”

However, the signs “Operation Boo” may present a different set of issues. In most cases, courts weigh the need of the government to control crime against the rights of sex offenders. As the attorney for the registered sex offenders, Janice Belucci, has pointed out, “there are no reports of a sexual assault upon a child who goes trick or treating.” San Diego County must make a reasonable argument that registered sex offenders are likely to lure children into their homes on Halloween. The court will also have to look at how dangerous these signs are to the sex offenders, who are forced to sit at home on Halloween with what amounts to a target on their houses.

How Can I Protect My Child from Sex Crimes on Halloween?

As the Rape, Abuse, and Incest National Network points out, children should avoid entering the home of any stranger on Halloween. It is better for them to trick or treat in a group and/or with adults. They should avoid “dark and gloomy” houses. They should also have a plan for how to reach parents in case of an emergency.

Following these types of safety tips may be better than singling out registered sex offenders and potentially making them targets. Even without the signs, sex offenders are not allowed to participate in trick-or-treating. Also, importantly, some people who may commit sex crimes have never been caught or punished—and there is no way to know who these people are. Be safe!

Jury Holds Gun Store Responsible For Milwaukee Shooting of Police Officers

Gun stores face little liability for the crimes committed with weapons that they sell. This is in part because federal law shields them from most (but not all) liability. However, two police officers have just successfully sued a gun store for negligence, the first-ever successful suit of its kind. If the jury’s verdict is upheld on appeal, this decision will have consequences for gun dealers in Wisconsin as well as in the entire U.S.  Gun Store

The Purchase

In May 2009, Jacob D. Collins entered a gun store called Badger Guns and purchased a Taurus PT140 Pro .40-caliber handgun. Collins was a “straw buyer”- in this a substitute buyer for someone who could not legally purchase a firearm. Collins was paid to acquire the gun for Julius Burton, an 18 year old who could not yet legally make the purchase. When Collins purchased the gun, he was asked whether or not he was the actual buyer of the gun- he said no- and was then instructed by a store employee to change his answer to yes. He did so, and walked away with a gun that the store knew would be given to another person.

The Shooting

One month later, Julius Burton was bicycling down a sidewalk when Officers Bryan Norberg and Graham Kunisch approached him and told him to move. Burton did not heed the officers and continued to bicycle. When the officers pursued Burton, he became aggressive. He then shot the officers seven times. Officers Norberg and Kunisch recovered from the shooting, but have long-term injuries. Burton was found guilty of attempted first-degree intentional homicide and sentenced to 80 years in prison. Collins was sentenced to two years for violating gun laws.

The Verdict Against Badger Guns

This shooting was not the first time a weapon that Badger Guns sold had been involved in a crime. According to the Milwaukee Chief of Police, six Milwaukee police officers had been shot with weapons which originated from Badger Guns between 2006 and 2009. After the Burton shooting, the Milwaukee-Wisconsin Journal Sentinel sent a Freedom of Information Act request to the Bureau of Alcohol, Tobacco, and Firearms and found that in 2005 Badger Guns, was the top seller of crime guns in the entire nation, with 537 guns involved in illegal activity.

Officers sued Badger Guns (and its related company, Badger Outdoors), saying that in this case, their actions led directly to the shooting. Employees had looked the other way to sell a handgun to a “straw buyer.” The officers won. A jury found that Badger Guns was negligent in the sale of the weapon that was used in the shooting. After a jury trial, they won a $5 million dollar settlement compensation for significant injuries that were a result of the shooting. One of the officers lost an eye and suffered brain damage. The other officer was shot in a way that damaged his teeth and jaw. Both suffer from anxiety and other psychological injuries due to the shooting.

A New Era of Responsibility for Gun Stores?

This was the first time that a gun store has been found negligent in court. Gun stores have generally been protected from repercussions for crimes committed with their products due to the 2005 Protection of Lawful Commerce in Arms Act (PLCAA). This act limits civil liability for businesses engaged in the sale of firearms. However, this act still allows lawsuits to be brought against gun dealers who are negligent, sell defective weapons, or engage in criminal behavior. However, these suits are generally not pursued.

People on both sides of the gun debate are excited about this decision for different reasons. For those who favor gun control, this is a blow against indiscriminate gun sales and a reason for gun dealers to want to keep some of their inventory off the street. However, many Democrats, including presidential candidate Hillary Clinton, voted against the PLCAA and would like to further increase liability for gun stores. For gun rights advocates, this case sends a strong signal that the PLCAA is working, and that existing gun control laws don’t need to be changed.

This decision will likely be appealed by Badger Guns, and could eventually land in the Wisconsin Supreme Court. However, it sends a signal that this type of lawsuit is possible, and thus will have a more immediate impact on the way gun stores view their obligation to follow the rules.