Criminal liability for Internet culprits: the need for updated state laws covering the full spectrum of cyber victimization.

• Author: Schwartz, Kate E.

1. INTRODUCTION

   On October 16, 2006, Tina Meier found her thirteen-year-old daughter, Megan, hanging from a belt inside her closet. (1) The situation was a tragedy from the start for Tina and her husband, Ron, who pieced together what had seemingly pushed Megan to her unexpected suicide. (2) Megan had only gotten to know sixteen-year-old Josh Evans through the cloaked world of an internet social network after he contacted her on MySpace. (3) But when, after a month of flirtation, Josh inexplicably became cruel, Megan grew distraught. (4) The day before she took her own life, Josh had publicly posted her private messages, as well as his own harsh comments calling her "fat" and a "slut," for others to read and laugh at. (5) It was the very day that she died though, just twenty minutes before Megan went through with her act of suicide, that she had received a message from Josh telling her: "Everybody in O'Fallon knows how you are. You are a bad person and everybody hates you. Have a shitty rest of your life. The world would be a better place without you." (6)

   It was not until six weeks later that the Meiers learned the true extent of the tragedy underlying their daughter's death; a young girl from the neighborhood came forward and informed them that Josh had never existed. (7) It turned out the fictitious boy had been created to "mess with Megan," (8) not by a sixteen-year-old at all, but rather, by a forty-seven-year-old woman who lived four houses away from the Meiers in Dardenne Prairie, Missouri. (9) Lori Drew's original intent was apparently grounded in a desire to find out what Megan would say about her daughter, a former friend of Megan's. (10) There is no reason to believe that Drew actually intended to bring about Megan's death. (11) But, arguably, she deliberately participated in a ploy that would foreseeably cause an adolescent to suffer severe emotional distress. (12) The emotional distress that Megan endured as a result of the internet ploy was particularly foreseeable for Drew, because Megan had struggled with depression issues in the past (13) and Drew was aware of Megan's emotional fragility. (14)

   Since the hoax that preceded Megan's suicide became public knowledge, the incident has often been referred to as an unfortunate example of "cyberbullying." (15) However, scholarly discussions about "cyberbullies" tend to pertain to minors and the question of whether schools have the legal right to discipline them. (16) Lori Drew's behavior made it clear that cyberbullying is not limited to students targeting their peers, and that a solution extending beyond school discipline may be necessary. (17) While similar problems have been recognized amongst adults in the context of cyberharassment and cyberstalking, it is difficult to ascertain the difference between these three forms of internet victimization, especially because they are often used interchangeably. Ultimately, since there are no universal terms with corresponding sets of definitions to describe the acts that internet culprits commit, (18) scholarly discussions surrounding different forms of internet victimization have become muddled with confusing overlaps regarding both the ages of the persons involved and the severity of the culprit's conduct. (19) Such overlaps thwart clear analysis and the creation of successful solutions.

   While many states have taken steps to account for the increased dangers posed by internet victimization, there is a need for more complete coverage in this area of law to account for the full spectrum of problematic behavior in the cyber context. This Note begins, in Part II, by presenting the current labels for victimizing internet behavior and their overlapping definitions as they are discussed in academic literature. Part III then explains why all forms of cyber victimization involve enhanced risks because of the internet's unique characteristics. Next, Part IV describes the current spectrum of state statutes in this area of criminal law, providing examples of how states' criminal codes do not account for all forms of cyber victimization independently. Part V then explains why states should update their laws to impose criminal liability for all possible forms of cyber victimization. Finally, Part VI proposes a three-tiered classification of cyber victimization crimes that states could effectively implement. The scheme proposed in this Note accounts for conduct that is likely to pertain to minors, but it does not involve categorical distinctions based on age. Instead, the proposed scheme includes the possibility for both adults and young people to be held liable, but breaks down degrees of liability based on the culprit's intent and the victim's harm suffered. (20)

2. BLURRED CATEGORIZATIONS: THE TERMS USED TO REFERENCE FORMS OF CYBER VICTIMIZATION

   The terms that scholars use to define various forms of cyber victimization lack clear distinctions, presenting an initial obstacle to creating effective solutions. Cyberstalking, cyberharassment, and cyberbullying are the most commonly used terms. The differences between these labels pertain to the ages of the parties involved and the severity of the victimizing acts at issue. As such, the terms largely blend together in scholarly commentary. (21)

   First, the term cyberbullying is typically used in reference to juveniles or students, but it is unclear exactly which party must be a minor for the situation at issue to constitute cyberbullying. Some commentators consider cyberbullying to be the internet counterpart to traditional playground bullying, which presupposes that the culprit and the victim are both minors. (22) For others, the term is used to reference "the victimization of minors," (23) regardless of whether the culprit is himself a minor or an adult. (24) A third definition for cyberbullying requires that the culprit be a minor, but leaves open the possibility that the victim could be an adult, such as a teacher. (25)

   The latter two uses of the term cyberbullying both contemplate the possibility that one party may not be a minor. These definitions overlap with what other commentators deem either cyberharassment or cyberstalking--terms that tend to be used in conjunction with adult behavior. (26) Furthermore, even though cyberstalking and cyberharassment typically pertain to adults, they may be used to reference situations involving cyber victimization in a school setting. (27) The overlap between these terms and cyberbullying can similarly be seen with respect to the degrees of harm inflicted by the culprit. According to the United States Department of Homeland Security's website for the United States Computer Emergency Readiness Team, schools are common problem areas, but cyberbullying "can affect any age group" and the actions at issue "can range in severity from cruel or embarrassing rumors to threats, harassment, or stalking." (28)

   In addition to overlapping with cyberbullying, cyberharassment and cyberstalking can be largely indistinguishable from one another. For example, one commentator states that cyberstalking is distinct from cyberbullying because cyberstalking involves credible threats. (29) Another commentator states that cyberstalking includes the use of "electronic communication to stalk or harass another individual," (30) suggesting that cyberstalking is not independent of cyberharassment (31) and need not involve credible threats.

   One commentator uses the phrase "cyber targeting" because it "both reflects more accurately what is going on and indicates that it can include many potential legal causes of action." The advent of this unique phrase highlights that using the more well-known terms for cyber victimization is difficult because the intended meanings of those terms may not be immediately apparent. (32) The discrepancies between the uses of these three terms in academic literature are similarly reflected in the inconsistencies amongst state laws dealing with cyber victimization. (33) However, before examining the range of state statutes, a discussion of the risks posed by cyber victimization is merited.

3. WHY ALL FORMS OF CYBER VICTIMIZATION INVOLVE ENHANCED RISK

   The internet's unique characteristics enhance the risks associated with all forms of victimizing communications in two related ways: First, they make cyber victimization more prevalent than victimization in the physical world. Second, they amplify the dangerous effects of such communications upon the victim. (34) Stalking and harassing speech are already commonly understood as criminal acts in the non-internet world. Like harassing and stalking speech, however, bullying speech is also more damaging when it is communicated over the internet. (35) As such, speech intending a lesser degree of harm, such as humiliation, should not be overlooked in the internet context, even though these types of communications may implicate young adults. Indeed, even in the non-internet context "[b]ullying manifests a wide range of emotional harm, from low self-esteem, anxiety, and depression to social withdrawal." (36) A 2006 news article highlights the fact that these manifestations are a reality of cyberbullying as well, reporting that "[e]xperts and news reports worldwide tell disturbing tales of students harassed via the computer to the point that they've left school or become severely depressed. A teenager in New Zealand recently committed suicide after being inundated with dozens of harassing and insulting text messages." (37) The reasons for the enhanced risks associated with internet victimization apply, therefore, regardless of whether the parties involved are minors or adults.

   To begin, one dangerous aspect of the internet is that it provides people with the ability to reach a vastly broader audience than ever before. (38) As a result, individuals are "no longer constrained by the volume of their voice" (39) when they send harmful messages over the internet, making it easier for the...