In 2013, 29-year-old Ian Barber allegedly posted nude photos of his ex-girlfriend on Twitter and sent them to her employer and sister. New York prosecutors charged him with aggravated harassment, but the charges were soon thrown out. It was not because evidence pointed to someone else as responsible for the disclosure of the woman’s nude photos. Rather it was because Barber did not send the photos directly to the victim, as New York’s aggravated harassment law requires.
Many state harassment and stalking laws, like New York’s, require proof that the defendant directly contacted the victim. Take Colorado’s, which defines harassment as repeated “forms of communication with another person” in a manner that would cause a “reasonable person to suffer serious emotional distress” and that “does cause that person to suffer serious emotional distress.”
As the Barber case shows, much online abuse is beyond the reach of harassment and stalking laws. Cyberharassment typically involves threats, lies that cause reputational harm, impersonations inviting sexual contact and invasions of sexual privacy, such as the nonconsensual posting of nude photos. Although perpetrators may contact victims directly by text or email, they often target them on blogs, websites and message boards as well. Searches of victims’ names feature threats, lies, impersonations and nude images for potential employers, clients and contacts to see. Victims experience fear and emotional distress; they have difficulty getting jobs; their online reputations are ruined. Strangers contact them for sex.
Cyberharassment inflicts considerable damage even if it is not sent directly to victims. Lawmakers could hardly have anticipated this possibility when they adopted harassment and stalking laws, many in the early 1990s. In the late 20th century, stalkers may have followed victims as they traveled to and from work, sent terrorizing letters or repeatedly called them in the middle of the night. Today social media and blogs are used to harass victims, often without direct contact.
States should revise their stalking and harassment laws to reflect this new reality.
Currently, many state harassment and stalking laws do not cover rape threats and nude photos of victims posted on a harasser’s blog or website, online ads that falsely claim victims’ interest in anonymous sex or defamatory lies that appear on message boards. These deeds are not covered because the abuse is not communicated directly to victims. But stalking and harassment laws should cover any means, methods or technologies exploited by perpetrators to persecute victims. Prosecutors should be able to present the totality of the abuse; that totality, after all, is what imperils victims’ safety, careers and peace of mind.
Lawmakers need not start from scratch. In 2013, Congress updated the telecommunications harassment statute by replacing the language “harass any person at the called number or who receives the communication” with “harass any specific person.” This allows federal prosecutors to present a full view of the damage, including texts, tweets or blog posts. State lawmakers should follow Congress’ lead.
When amending their statutes, lawmakers should avoid overly broad or vague language that raises due process and free speech concerns. Many harassment laws cover communications likely to cause annoyance. Those statutes are vulnerable to constitutional challenge because annoying speech — such as repeatedly calling someone nasty names — is constitutionally protected. As states revise their laws, they ought to eliminate such language.
Such reform must be paired with mandatory cyberharassment training for law enforcement. Far too often, police officers fail to address cyberharassment complaints because they lack familiarity with the technology and the law. Victims are often advised to turn off their computers even when there are applicable harassment and stalking laws, because the police officers don’t know how to investigate such cases. A local police department told a woman facing online rape threats that she should pay no attention because it was just “boys being boys.” Law enforcement advised a revenge-porn victim that her ex had the right to publish her nude photos and video next to her name and the suggestion that she “masturbated for her students,” because she had shared the images with him. When the journalist Amanda Hess went to law enforcement after being repeatedly and graphically threatened on Twitter, the officer told her to go offline to avoid the abuse.
Thankfully, steps toward reform are already happening. Last week Twitter and Reddit barred the posting of nude photos without the consent of the subjects. This week Facebook clarified its prohibition of nudity to make clear that it was banning revenge porn. Crucially, Facebook is using its policy changes to explain the reasons for its bans so it can better teach users about the harms inflicted and thus help shape user norms. Helen Norton, an associate professor of law at the University of Colorado Law School, and I urged online platforms to do just that in a law review article published in 2011. It is gratifying to see Facebook explain the reasons behind its bans and give users an opportunity to respond.
There is action at the state level as well. In the past 18 months, 14 states have prohibited the nonconsensual posting of people’s nude photos in violation of their trust and confidence, bringing the total number to 16. Thanks in part to the hard work of the Cyber Civil Rights Initiative, 22 states and the District of Columbia are considering proposals to criminalize nonconsensual pornography. State attorneys general, such as California’s Kamala Harris, are devoting resources to devising more effective training programs for law enforcement.
With such changes taking root, lawmakers in other states should follow suit, take note of online abuse and reform their harassment and stalking laws.