Combating cyberbullying: emphasizing education over criminalization.

• Author: Meredith, Jessica P.

1. INTRODUCTION II. DEFINING CYBERBULLYING III. UNITED STATES V. DREW A. Legal Cause of Action 1. The Computer Fraud and Abuse Act 2. The MySpace Terms of Service B. Lori Drew's Prosecution and Acquittal IV. CRIMINALIZING CYBERBULLYING THROUGH LEGISLATION A. State Cyberbullying Laws B. The Megan Meier Cyberbullying Prevention Act 1. Avoiding Overcriminalization: Carefully Criminalizing Only Criminal Acts 2. Safeguarding First Amendment Freedoms 3. Relying on Prosecutorial Discretion C. Enforcing Cyberbullying Law 1. Prosecuting the Practical Joke: Elizabeth Thrasher 2. Shifting From the Principal's Office to Juvenile Court V. PREVENTION THROUGH EDUCATION A. Student Internet Safety Act of 2009 B. Funding Educational Efforts: AWARE and SAFE Internet Acts C. Post-Legislative Education Efforts VI. CONCLUSION I. INTRODUCTION

   A new form of cyberbullying, or bullying that takes place on the Internet, (1) emerged in 2006 when Loft Drew used the online social networking tool MySpace to harass Megan Meier, a resident of Dardenne Prairie in suburban St. Louis. (2) Thirteen-year-old Megan's story is unique because Drew was an adult--the mother of another preteen girl. (3) The cyberbullying began when Drew used MySpace to create a fictitious profile for a sixteen-year-old named "Josh Evans" on September 20, 2006. (4) It ended a few weeks later when Megan hanged herself in her closet in response to Josh's suggestion that the world would be a better place without her. (5)

   In addition to the fact that Drew's example involved an adult bullying a minor, this situation is unique because Drew's actions were criminally prosecuted in federal court. (6) Since Drew's use of MySpace to create a fake profile and harass another member violated the MySpace Terms of Service, she was prosecuted for violating the Computer Fraud and Abuse Act (CFAA). (7)

   Though Lori Drew was the adult perpetrator of one of the most extreme examples of cyberbullying, the fact that no criminal law specifically prohibited her behavior does not justify stretching the CFAA or passing new legislation that defines cyberbullying as a new crime. However, federal legislation that combats cyberbullying through educational initiatives would have a positive impact. This Note will define and introduce extreme examples of cyberbullying in Part II. In Part III, this Note will focus on the criminal prosecution and acquittal of Lori Drew in response to her extreme cyberbullying actions. Part IV will examine how public outcry in response to extreme cyberbullying incidents has prompted both state and federal legislators to take action, including proposals to impose criminal sanctions against cyberbullying. Considering the positive and negative effects of the efforts to combat cyberbullying so far, this Note will argue in Part V that prevention through education will be the most effective solution. Since educational efforts do not include the possible negative consequences of imposing criminal anticyberbullying sanctions, increased Internet safety educational efforts address cyberbullying positively, by empowering educators with the necessary tools to inform students and parents about how to use ever-changing technology wisely and safely.

2. DEFINING CYBERBULLYING

   Minors' general innocent and naive nature, when combined with the environment of the Internet, creates a fertile atmosphere for bullying, especially since parents can be ignorant of their children's behavior and the dangers involved. (8) In describing the practical effects of these dangers, David Frey, Staten Island assistant district attorney and chief of the computer and technology investigations unit, noted, "[u]nfortunately, many people have trouble living by [the Golden] rule, and when being unkind is taken to the Internet, police and prosecutors are often called on to step in. Welcome to the world of cyberbullying." (9)

   In a seemingly positive way, the Internet has increased the available forms of communication to include email, instant messaging, and similar forms of messaging through social networking sites. (10) These communication avenues allow instant connection to friends and acquaintances, but as a result, "[s]ocial networking sites like MySpace, Facebook, and Twitter have gone from Internet destinations to personal essentials." (11) While the benefits of this increased technology include increased speed of communication, a particularly unique and potentially dangerous aspect of this technology is its tolerance (and even encouragement) of anonymity. (12) Another danger is that online communication is particularly accessible to children, and even more tailored toward younger users than adults in some cases. (13)

   While more research is necessary on children's motivations for cyberbullying, (14) studies have found that between eight percent of teenagers (15) and eighteen percent of middle school students have been victimized by this behavior. (16) Cyberbullying seems to be most prevalent among girls (both in roles as bullies and victims), beginning in the sixth and seventh grades. (17) Though a relatively modem phenomenon, its effects among victims include "higher rates of absenteeism, low self-esteem, suicidal thoughts, drug and alcohol use and illness." (18) More so than schoolyard bullying, cyberbullying has a particularly pervasive presence so, "[f]or some kids who are targeted at school and out of school, it can be a nightmare. They don't feel like they have a break," said Patricia Agatston, the coauthor of Cyber Bullying: Bullying in the Digital Age. (19)

   In one of the earliest publicized examples of the dangerous results of cyberbullying, Ryan Halligan committed suicide on October 7, 2003, at age thirteen, (20) the same age at which Megan Meier took her own life. Ryan did so in part because some of his schoolmates committed a prank against him in a form of online bullying. (21) Ryan's father, John Halligan, recalls that Ryan "loved being on-line," but that he followed the house rules John set about Internet safety. (22) Leading up to his suicide, Ryan had been teased at school and the summer before he entered eighth grade when "a classmate pretended to be interested in him romantically [and] then forwarded his instant message responses to all of her friends." (23) When the school year began and he approached her in person, "she told him he was just a loser and that she did not want anything to do with him." (24)

   Similar to John Halligan's rules for his son's Internet access, Megan Meier's mother, Tina, monitored Megan's Internet use. (24) Though hesitant because Megan admitted not knowing "Josh Evans," Tina allowed her to accept his MySpace friend request at Megan's continuous pleas such as, "but look at him! He's hot! Please, please, can I add him?" (26) Both Meiers were unaware the account had actually been created by Lori Drew, the mother of one of Megan's former friends, whose intent was to discover what Megan was posting about her daughter. (27) Once accepted as a "friend," Drew used the fake account to take advantage of Megan's vulnerabilities and make her believe Josh had a crush on her. (28) Megan did fall for the crush, but less than a month after it began, Josh told her, "It]he world would be a better place without [her in it]." (29) After receiving that message on October 16, 2006, Megan hanged herself in her closet. (30) While Megan had received counseling for depression before the cyberbullying began, her mother Tina blames the cyberbullying for pushing her over the edge. (31)

   More recently, in January 2009, California student Hail Ketchum settled a lawsuit with Corona del Mar High School and the Newport-Mesa Unified School District over a video posted on Facebook, the social networking website. (32) The video was posted by three other students who "graphically described raping [Ketchum] in the back of a pickup truck." (33) More than 600 students viewed the video before it was removed. (34) While Ketchum found the video itself disturbing even though no actual rape occurred, the lawsuit arose out of the fact that when notified of the online harassment, the school "administrators did little to deal with [the video posters]." (35) As part of the settlement, the school district is required to institute harassment- and discrimination-prevention training for students and faculty as administered by the Anti-Defamation League. (36) The district was also required to apologize to Ketchum, who was represented by the ACLU in the lawsuit because the Facebook video stirred up issues of sexism and homophobia surrounding the school's production of the musical, Rent. (37)

   The experiences of Hail Ketchum, Ryan Halligan, and Megan Meier show varied, though similarly severe examples of bullying that was, arguably, more extreme because it occurred via the Internet. The fact that more than 600 students were quickly able to view the video harassing Ketchum, just as countless friends of Ryan Halligan's bully were able to read the embarrassing messages she forwarded, represents the speed and reach of Internet communications. That unique, but significant factor clearly distinguishes cyberbullying from other forms.

   While factors distinguishing cyberbullying from other types of bullying do exist, the 2008 Internet Safety Technical Task Force was unable to determine with certainty that bullying is generally on the rise as a result of cyberbullying. (38) It is difficult to establish whether cyberbullying is actually creating an opportunity for entirely new bullies, or whether bullying is "just shifting venues" from the schoolyard to the Internet. (39)

   Whether or not bullying is simply shifting venues, these extreme examples of a new kind of bullying have brought the issue to the forefront of the public's attention. In response, state laws have been amended to address cyberbullying through varying methods, (40) and federal legislation is currently pending. (41) While this type of bullying ranges from...