Tag Archive for 'harassment'

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.

The Dangers of Pranking

Pranks are just about as old as human history. From slapstick schemes to senior pranks, there are pranks for just about every situation. Recently, pranking has become a very popular trend online. People are coming up with all kinds of pranks—everything from scare pranks (startling people), wake-up pranks (waking up people in crazy ways), and drive-thru pranks—just about any situation has become an arena for pranking.

dangers of prankingThe problem is, lots of pranksters end up getting into legal trouble because of their stunts. Sometimes pranks go wrong, resulting in an accident. But other times, the prank itself is actually illegal and the participants are caught by the police. The types of legal violations that can occur during a prank are endless. Even seemingly innocuous pranks are just ripe with potential legal disasters waiting to happen.

Some legal violations that can result from a prank include:

  • Assault: Legal definitions of assault include offensive conduct, not just physical contact. Throwing something can result in assault charges as well
  • Reckless endangerment
  • Destruction of property
  • Disorderly conduct
  • Criminal conspiracy (common when more than one person is in on the prank)
  • Various traffic violations and citations
  • Kidnapping/False Imprisonment (For instance, tying a person up and leaving them somewhere, or transporting them against their will)
  • Negligent Infliction of Emotional Distress (NEID)
  • Stalking/Harassment

Pranking will always involve some element of deceit and false appearances. Pranks can be pulled off because the victim doesn’t know the true facts behind the circumstances they are presented with. But the thing is, when you’re messing with people’s trust, emotions, and physical expectations, the risk of injury increase greatly. When someone is startled, you never know how they’re going to react.

Potential for injury further increases when people start trying to outdo each other in terms of ridiculousness. Central to pranking is the tendency for a single incident to escalate into a prank war. Once one person gets pranked, protocol dictates that they must “get even” with the person. Back and forth retaliation ensues, often until someone gets offended or physically hurt. This is often how the line of what is acceptable gets crossed.

Take for example one of the more extreme pranks I’ve read about: “Swatting.” This is where the prankster calls the police requesting that they send a SWAT team to a certain location, usually the victim’s house. The caller will falsely state that they witnessed a criminal situation, causing the police to come crashing into the person’s house. Filing a false police report is illegal in itself. But calling in a SWAT team? That is way over the line and can endanger someone’s life and lead to all kinds of property destruction.

What’s my take on all this? Don’t get involved with pranking, and don’t get sucked into a prank war. One of the worst parts about pranking is that it usually starts as a game or an over-exaggerated joke. It’s definitely not worth going to jail or getting slapped with a fine just for a practical joke. People are getting fines ranging in the $1,000’s of dollars, or going to jail for a year, all for a few laughs or “Internet fame.” I think this one trend that needs to go away as soon as possible.

Facebook Involved in an Unusual Lawsuit between Uncle and Nephew

Family feuds have been a common form of entertainment on television.  Many of us have tuned in to watch shows like Family Feud, Modern Family, Growing Pains, etc.  In the legal realm, family feuds have comprised of a practice termed family law.  Attorneys who practice family law are considered to have a “tough heart” by many because it is not easy watching families endure events such as divorces and custody battles.  Speaking of families and lawsuits, a recent lawsuit of a nephew sewing his uncle for harassment over Facebook pictures gives new meaning to the term “family feud.”

A man from Minnesota named Aaron Olson sued his uncle because his uncle had posted childhood pictures of him, in front of a Christmas tree, in a rabbit costume.  Rather than untagging himself from the picture, or calling his uncle and politely asking him to remove the picture, Aaron sued his uncle for harassment in a Minnesota district court.

Olson’s claim was based on the fact that the pictures were “innocuous family photographs.”  Posting such photographs on Facebook establishes a platform for mean comments to be directed towards Olson.  The court dismissed this case, and the Court of Appeals of Minnesota denied Olson’s complaint.

The Judge in the Court of Appeals of Minnesota stated that harassment occurs when words have some sort of adverse effect on the safety, security, or privacy of another person.  Therefore, mean or disrespectful comments do not constitute harm to one’s safety, privacy or security. The court ruled that the district court was correct in stating that the evidence submitted by Olson (the Facebook pictures of him in a rabbit costume, in front of a Christmas tree) did not satisfy the requirements to prove harassment.

This lawsuit is probably the most ridiculous one I have heard of to date.  The obvious lesson to take away is that if you have a minor issue with a relative, talk to them.  The power of effective communication can do wonders, keep people out of court, and put the money spent on potential litigation back into your pocket!

More importantly, when frivolous suits are brought into court, it is a misuse of the judicial system and a waste of judicial resources.  People should realize that the judicial system is there to tend to complex matters that cannot be solved in the home or office environment, not minor family feuds over embarrassing photos.

So, a few tips to people out there.  Before thinking about going to court, evaluate the basis of your lawsuit.  If your lawyer explains things to you, you will be hit with a hefty legal bill.  Rather than depending on your lawyer, think about how much merit you have in your claim.  Next, think about solutions that do not involve litigation.  Often, litigation complicates matters before reaching a resolution.  If there is a quicker way to achieve some closure out of court, go for it.  Lastly, confide in a close confidant to see if your potential claim passes the “straight face test.”  Specifically, after conveying your claim to your confidant, examine their expression.  If it is not of a straight face, and rather is one of disgust, surprise, or awkwardness, it is likely that your lawsuit is frivolous.  Avoid filing it and resolve matters in the comfort of your own home!

Helpful Legal Hints for Employers

A lot of HR departments have trouble with some basic legal issues.  TheWashington Post recently wrote an article for small businesses on how to handle some common “HR nightmares.”  The article lists the following as common issues employers tackle:

  • Misclassifying Workers
  • Overtime
  • Breaks
  • Firing Procedures
  • Discrimination and Harassment

Below are some suggestions on how to handle such issues:

Am I Dealing With an Employee or Independent Contractor?

It is very important for employers to understand the difference between an employee and an independent contractor.  Basically, if an individual has control over their hours, working instruments, and method of work they are an independent contractor.  If an employer sets the hours, provides instruments and strategies procedures/working methods, an employer is dealing with an employee.  There are numerous lawsuits every year because employers have violated labor laws by treating an employee as an independent contractor, or vice versa.

The best thing to do is to read the labor law of your state, extract the definitions set forth for “employee” and “independent contractor,” and refer to it before classifying an employee.  Such small efforts can easily avoid later litigation. 

Overtime—To Pay or Not to Pay?

Since these laws vary state to state, it is important for every employer and/or HR department to understand its state laws on what is considered overtime, and when to pay it.  There are also tricky nuances.  For instance, California views an employee working over eight hours per day as overtime.  However, over forty hours per week is also considered overtime.  Many lawsuits have arisen because employees, who have wanted longer weekends, agreed to work over eight hours a day Monday through Thursday, in order to have Friday off.  Although the amount worked totaled forty hours per week, since employees were working over eight hours a day, labor laws required them to be paid for overtime.

A lesson to take from this is that when reading laws, pay attention to conjunctions such as “and” or “or,” because they hint towards small nuances, which, if not followed, can lead to litigation. 

Breaks—Employees Need to Step Away from Their Work.  It is the law!

It is very important for workers to take proper breaks.  Some workers choose to eat lunch at their desks or skip break because “they have too much to do” or are “almost finished with something.”  Sometimes, employers themselves are in meetings with employees, these meetings run long, and break time passes.  Employers often then encourage everyone to “get back to work” rather than instruct them to go out and make up their break time.  Such behavior from both employees and employers can get employers into trouble.  Why?  Later on, these same employees may claim to have been working diligently during their allotted break times, bringing employers into trouble for violation of labor laws.

What to do?  A lot of companies now have break rooms where no work can be conducted, or require workers to leave the premises during their breaks.  This is a great idea.  Overall, employers need to be proactive and ensure that employees take breaks.  If in a meeting, employers should be conscious and either announce a break during the meeting, or instruct employees to take their break after the meeting is over.  Otherwise, employers should create break rooms and/or have signs up that require employees to physically leave the office area during allotted break times. 

Firing Procedures

The major issue here is that employers establish firing procedures in the company handbook, and do not follow them.  This gives employment lawyers ample ammunition against you in court.  For instance, perhaps the company handbook will state that there will be a review process with the Board of Directors before firing someone.  However, that was not followed when an employee was terminated.  This can get employers into trouble.

To stay away from litigation, follow the procedure your company has established when firing someone.

Discrimination and Harassment—What Employers Think It is and What the Law Says It Is May Be Different

Most of the time, discrimination and harassment are not obvious.  Small comments on appearances guised as “compliments,” or harsh words with multiple meanings during a heated conversation can be discrimination or harassment.  People often associate extreme cases with these concepts; however discrimination and/or harassment instances can be subtle acts in workplace communication.  Many HR departments and employers do not understand this.

A great solution is to first understand the statutory meaning of these two terms.  Then, along with the usual description and “no tolerance policy” written in most corporate handbooks, it is a great idea to have a workshop for employees and management personnel on discrimination and harassment in the work place.  This not only will educate one’s work force, but will also make the company’s “no tolerance” policy clear to everyone.  Such small efforts are a great way to avoid any potential lawsuits. 

Of course there are more solutions to tackle these problems.  Employers should educate themselves and their HR departments, and have lengthy discussions with the corporate attorney(s) to ensure that the company is protecting itself from any potential lawsuits.   This article has some suggestions, and meeting with your corporate attorney will definitely yield more!

When Do Simple Craigslist Pranks Turn Into Cases of Harassment?

Normally when you think of harassment, you think of stalkers, or persistent people who have lost touch with reality and won’t leave you alone. Craigslist, as a tool for harassment, doesn’t really come to mind.

But as Craigslist has grown throughout the years, so has its uses evolved from a classified advertising webpage, to a tool for pranks in creating phony ads. Of course, Craigslist does not endorse any type of inappropriate postings, and most of its users don’t appreciate these phony ads either. But who hasn’t run across the occasional ridiculous ad and been silently amused by it?

More seriously though, when does posting a phony or false Craigslist ad turn into a crime? Well, off the top of my head, I can think of plenty of circumstances where this situation could get out of hand and turn into something with serious, legal consequences. But one situation that seems to keep cropping up over and over again is a case of harassment involving the use of phony Craigslist ads. Every few months, it seems like, there’s a new case of someone being guilty of harassment for creating a phony Craigslist ad. Let’s take a look at a couple of the most recent cases:

Earlier this month, there was the case of Crystal Oliver who wanted to retaliate against a friend. Oliver snuck into her friend’s apartment and created two Craigslist postings advertising sexual favors from her friend. She also included the friend’s phone number in the posting.  Before the next morning, her friend had received about 70 phone calls and five text messages. The court’s verdict? Oliver was guilty of sexual harassment.

In another case early this year, Jonathan Medina, a former pharmacist from Connecticut, wanted to retaliate against a customer after arguing about her prescription. In response to their dispute, he created a Craigslist ad for the customer indicating that she was looking for sex. As a result, the customer received 25 phone calls, and one person even tried to visit her home. Medina pleaded guilty to misdemeanor harassment and was sentenced to two years’ probation.

These are just two examples, but there are many other, similar cases out there where courts have found that harassment exists. However, none of these cases fit the normal bill of what you would expect a harassment case to be. These perpetrators did not actually make the phone calls that constituted harassment, nor did they even engage in repeated or multiple acts of harassment.  So what exactly constitutes harassment? This would be a good time to review the law on harassment.

To begin with, “harassment” is a general term that encompasses a plethora of different legal actions you could take. There are both federal and state laws against harassment. Additionally, there are both civil and criminal harassment claims. And within criminal harassment, you can be charged with either misdemeanor or felony harassment.

Furthermore, harassment is broken down into several different types—sexual harassment, workplace harassment, verbal harassment, phone harassment, even internet harassment—you name it. My point is that there is no uniform harassment law, and each jurisdiction will have a slightly different variation on what constitutes harassment.

Regardless, there are still some common elements that can be found throughout all or most harassment claims:

1. Intent: This is a frequently found word throughout most harassment statutes, but it can be very misleading. Intent doesn’t usually require that the perpetrator have the express intention of harassing/making life difficult for the victim. Instead, it is usually enough for the perpetrator to have known about the consequences of his actions, but not necessarily have wanted for them to happen.

Take the example of the harasser who persists in making phone calls to a romantic love interest. The harasser certainly does not intend to disrupt the victim’s life, but only wants to prove how much the victim is “loved.” Regardless, the harasser’s actions in themselves are enough to make him/her guilty of harassment. It is of no consequence that the harasser had no intention of actually making the victim’s life difficult.

In the Craigslist cases, courts have made it clear enough that the perpetrators don’t have to be the ones to actually make the harassing phone calls, texts, or home visits, to be found guilty. Instead, it’s enough to just be aware of the likelihood of these consequences happening.

2. Frequency of the act: Most statutes will cite harassment as being a pattern of repeated behavior over time. However, in many circumstances, if the action is severe enough, even one act may be enough to constitute harassment.

For example, in California, one telephone call is enough to constitute harassment if it contains obscenity or violence. If not, telephone harassment only exists through repeated actions.

Somewhat similarly, in the Craigslist cases, the courts found that harassment existed even though the perpetrators had only put up one or two Craigslist postings. However, what the courts were probably swayed by was the fact that the perpetrators knew of the likelihood of these postings leading to a host of offensive phone calls.

This is by no means a precise analysis of what constitutes harassment. However, what I believe we can take away from these cases is that the definition of harassment can be quite broad. This gives courts a great deal of leeway in deciding harassment cases. More importantly, the trend for now in Craigslist cases seems to be that courts will not be lenient towards those who continue to use Craigslist for pranking purposes.