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.  

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.