Legislators in at least nine states have introduced bills this year targeting cyberstalkers. Such measures have been introduced in Delaware, Florida, Illinois, Louisiana, Maine, Mississippi, New York, South Carolina and Rhode Island.
Every state currently has either an anti-stalking or anti-harassment law that seeks to protect individuals from repeated harassing behavior. However, the majority of states do not have laws that specifically address stalking on the Internet.
The cyberstalking measures are a response to a perceived need to protect people from the harassing behavior people confront when they travel online. Unlike offline stalkers, Internet stalkers do not need to be near their victims geographically.
Many of the proposals amend existing stalking laws to ensure that threatening behavior over the information superhighway is prohibited. Most use the term cyberstalking. Others call the problem "computer harassment." Most of the proposals require that the communications harass a person and place that person in reasonable fear for his or her safety.
State cyberstalking bills introduced in 2001
- On Jan. 8, Mississippi Rep. Robert Moak introduced House Bill 564, which would clarify that "electronic communications are included in the actions that can constitute the crimes of harassment and stalking."
The measure would prohibit the use of electronic communication to engage "in a pattern of conduct the intent of which was to follow, alarm or harass the plaintiff." The measure would require the plaintiff to "support his or her allegations with independent corroborating evidence."
To prove stalking, the plaintiff would also have to show that the plaintiff "reasonably feared for his or her safety" and that the plaintiff had "clearly and definitively demanded" that the defendant quit his or her harassing pattern of conduct.
Moak's bill failed to clear a House committee. However, he says he plans to re-introduce the measure next year.
- On Feb. 28, Rhode Island Sen. Maryellen Goodwin introduced Senate Bill 813, which prohibits "computer harassment" and "cyberstalking." The measure would provide that whoever sends computer messages to another "repeatedly for the sole purpose of harassing, annoying or molesting" another "shall be guilty of cyberstalking.
The Rhode Island measure also would prohibit sending electronic mail to anyone "for the sole purpose of using threatening, vulglar, indecent or obscene language." The measure is currently before the judiciary committee.
Department of Justice report
Awareness over the problems of cyberstalking became heightened when then-Vice President Al Gore asked the attorney general to examine the problem of cyberstalking. In August of that year, the attorney general released "Cyberstalking: A New Challenge for Law Enforcement and Industry."
The report says online stalking is "a serious and growing problem. It says that "states should review their existing stalking and other statutes to determine whether they address cyberstalking and, if not, promptly expand such laws to address cyberstalking."
The report does show some sensitivity to First Amendment concerns. It notes that "because stalking can involve expressive conduct and speech, anti-stalking statutes must be carefully formulated and enforced, so as not to impinge upon speech that is protected by the First Amendment."
The reports details that this is "particularly true with regard to cyberstalking, which frequently will involve speech over the Internet." It concludes that "care must be taken to drafting cyberstalking statutes to ensure that they are not so broad that they risk chilling constitutionally protected speech, such as political protest and other legitimate conduct."
The report mentions that one of the biggest obstacles facing law enforcement officials in battling cyberstalking is the "challenge of anonymity" prevalent on the Internet.
Ironically, most of the measures were not introduced because of the 1999 attorney general report. Janine Prezioso, public relations director for New York Assemblyman Spano, said that Spano's bill did not come from a response to the federal report. "The bill came from the representative's concern to help children and to stop sexual predators from stalking children on the Internet."
"We are still fine-tuning this bill," she said. "We are talking to several lawyers to see if we can include more specific language in the bill to make sure that it will pass."
Moak also says that his bill was "not triggered by any federal move."
"With the explosion of electronic communications in our society, cyberstalking has become a prevalent problem," Moak said. "I think this measure will get picked up on down the road."
Constitutionality of state bills
UCLA law professor Eugene Volokh, who writes extensively on First Amendment issues, says that several of the measures likely pass constitutional muster. "For example, the Delaware, Illinois and Maine bills focus on speech that causes a reasonable person to fear physical injury," he said. "These bills are constitutional and probably a good idea. They are threat laws that target true threats, not protected speech."
However, Volokh questioned language in the bills from Florida, Rhode Island and South Carolina. The troubling language, he says, is "use of a computer repeatedly for the sole purpose of harassing, annoying, or molesting that person."
"First of all, very few messages will be sent for the sole purpose of harassing," he said. "Someone could send an annoying e-mail message to harass and to express their views on a particular subject matter. Even if a reviewing court interpreted the language to mean the predominate purpose, the bill could still apply to e-mail on a discussion list that really annoys a particular listener."
Volokh says the legislature should make clear that the bill would apply only to those who kept sending harassing messages after being told to stop.
He finds a similar problem with the language from the South Carolina bill. "The South Carolina legislature should make clear that the cyberstalking language targets harassing e-mail directed toward a particular person and does not apply to e-mail in a discussion list," he said.
Volokh also questions the language in the Florida bill defining Internet stalking as communication that "does not serve a legitimate purpose."
"This bill is not limited to threats and could present vagueness problems," he said.
David Sobel, general counsel for the Electronic Privacy Information Center, says the movement of enacting cyberstalking and computer harassment laws contains potential perils for those concerned with free speech.
"I agree that the Internet shouldn't be a safe haven for activities that should otherwise be prohibited," he said. "However, I do have a problem where the legislation is not technology-neutral and singles out the Internet or any other form of communication.
"Some of the anti-stalking efforts really amount to an assault on the right to communicate anonymously," Sobel said. "We at EPIC feel very strongly about this right because it is at the intersection of privacy and free speech."
Despite these concerns, the push for cyberstalking legislation continues at an accelerated pace. First Amendment advocates hope the rush to solve the problem for cyberstalkers will not result in a loss of free expression.
Rep. Lemoine says that "it's always been a tough balance between protecting a stalking victim and preserving the stalker's constitutionally protected liberties."