Federal cyberstalking laws

Federal cyberstalking laws

Federal law provides a number of important tools that are available to combat cyberstalking. Under 18 U.S.C. 875(c), it is a federal crime, punishable by up to five years in prison and a fine of up to $250,000, to transmit any communication in interstate or foreign commerce containing a threat to injure the person of another. Section 875(c) applies to any communication actually transmitted in interstate or foreign commerce - thus it includes threats transmitted in interstate or foreign commerce via the telephone, e-mail, beepers, or the Internet.

Although 18 U.S.C. 875 is an important tool, it is not an all-purpose anti-cyberstalking statute. First, it applies only to communications of actual threats. Thus, it would not apply in a situation where a cyberstalker engaged in a pattern of conduct intended to harass or annoy another (absent some threat). Also, it is not clear that it would apply to situations where a person harasses or terrorizes another by posting messages on a bulletin board or in a chat room encouraging others to harass or annoy another person (as in the California case, discussed infra.).

Certain forms of cyberstalking also may be prosecuted under 47 U.S.C. 223. One provision of this statute makes it a federal crime, punishable by up to two years in prison, to use a telephone or telecommunications device to annoy, abuse, harass, or threaten any person at the called number. The statute also requires that the perpetrator not reveal his or her name. See 47 U.S.C. 223(a)(1)(C). Although this statute is broader than 18 U.S.C. 875 -- in that it covers both threats and harassment -- Section 223 applies only to direct communications between the perpetrator and the victim. Thus, it would not reach a cyberstalking situation where a person harasses or terrorizes another person by posting messages on a bulletin board or in a chat room encouraging others to harass or annoy another person. Moreover, Section 223 is only a misdemeanor, punishable by not more than two years in prison.

The Interstate Stalking Act, signed into law by President Clinton in 1996, makes it a crime for any person to travel across state lines with the intent to injure or harass another person and, in the course thereof, places that person or a member of that person's family in a reasonable fear of death or serious bodily injury. See 18 U.S.C. 2261A. Although a number of serious stalking cases have been prosecuted under Section 2261A, the requirement that the stalker physically travel across state lines makes it largely inapplicable to cyberstalking cases.

Finally, President Clinton signed a bill into law in October 1998 that protects children against online stalking. The statute, 18 U.S.C. 2425, makes it a federal crime to use any means of interstate or foreign commerce (such as a telephone line or the Internet) to knowingly communicate with any person with intent to solicit or entice a child into unlawful sexual activity. While this new statute provides important protections for children, it does not reach harassing phone calls to minors absent a showing of intent to entice or solicit the child for illicit sexual purposes.

Thus, although current statutes address some forms of cyberstalking, there are gaps in current federal and state law. As outlined in the Recommendations below, States should review their existing stalking and other statutes to determine whether they address cyberstalking and, if not, expeditiously enact laws that prohibit cyberstalking.

Federal legislation also is needed to fill the gaps in current law. While most cyberstalking cases will fall within the jurisdiction of state and local authorities, there are instances - such as serious cyberharassment directed at a victim in another state or involving communications intended to encourage third parties to engage in harassment or threats - where state law is inadequate or where state or local agencies do not have the expertise or the resources to investigate and/or prosecute a sophisticated cyberstalking case. Therefore, federal law should be amended to prohibit the transmission of any communication in interstate or foreign commerce with intent to threaten or harass another person, where such communication places another person in fear of death or bodily injury to themselves or another person. Because of the increased vulnerability of children, the statute should provide for enhanced penalties where the victim is a minor. Such targeted, technology-neutral legislation would fill existing gaps in current federal law, without displacing the primary law enforcement role of state and local authorities and without infringing on First Amendment-protected speech.