It's time to get serious about prosecuting Internet threats

"Our character is what we do when we think no one is looking."

That's what H. Jackson Brown, Jr., wrote in Life's Little Instruction Book. Anonymous social-media apps such as Yik Yak and Whisper are proof that a perceived lack of accountability brings out the best in some people, and the worst in others.

Another trite adage is that you take the good with the bad, but are we really helpless to prevent Internet harassment, especially when it crosses the line into criminal threats? There's no reason why people should be subject to criminal treatment on the Internet. But how do we go about combating online harassment without infringing on people's right to express themselves freely and anonymously?

A Pew Research Center study released in October 2014 distinguishes relatively tame name-calling and embarrassment from physical threats, ongoing harassment, stalking, unwanted sexual comments, and other severe types of harassment. Men are more likely to experience the former, while women are the target of the latter more-serious behavior. (I wrote about the study in the January 13, 2015, Weekly, "How to combat hate and harassment on the Internet.")

If you threaten someone -- online or elsewhere -- and that person reasonably believes the threat is credible, you've committed a crime, and you should be prosecuted to the full extent of the law. (Note that some criminal-threat statutes include specific intent as a required element; see the discussion of Elonis v. U.S. below.) Of course, this raises a few pertinent questions, such as "Which law was violated?", "Who will press charges?", and "Where will the charges be filed?"

It's encouraging that since 2013, 20 states have enacted laws against revenge porn, as Pacific Standard's Francie Diep writes in a June 22, 2015, article. Last March, Congresswoman Katherine Clark, D-Mass., wrote a letter to the U.S. Department of Justice calling for “prioritize investigations and prosecutions of cyber abuse crimes targeting women,” as Salon's reports in a post from May 29, 2015. Clark recently introduced the Prioritizing Online Threat Enforcement Act, which would help fund the FBI's investigation and prosecution of Internet threats; We Live Security's Kyle Ellison describes the bill in a June 8, 2015, article.

A case in the U.S. District Court in Wilmington, Delaware, is thought to be the first time defendants have been charged with cyberstalking resulting in death. Jessica Masulli Reyes and Saranac Hale Spencer report on the case in a June 22, 2015, article on Delaware Online. The case involved a child-custody dispute that escalated to the murder of the children's mother and another woman by the children's paternal grandfather.

The charge was brought under the Violence Against Women Act of 1994, but credible online threats can be prosecuted under existing state laws, such as California Penal Code 422 PC. That statute defines "criminal threat" as the threat of physical harm against someone that 1) places the person "in a state of reasonably sustained fear for his/her safety or for the safety of his/her immediate family," 2) is "specific and unequivocal," and 3) is communicated "verbally, in writing, or via an electronically transmitted device."

The Washington Post's Timothy B. Lee writes in a January 7, 2014, post that police and prosecutors haven't made responding to online threats a priority. Lee cites a proposal by legal scholar Danielle Citron to extend civil rights laws to online harassment of women, although Lee points out that doing so would raise First Amendment and other Constitutional issues. He argues that once some of the people making threats online are put behind bars, it will deter others from doing likewise.

How to report online threats

Here's an excerpt from my post from last January on Internet harassment:

"In an August 8, 2013, CNET post I described how to report problems to Google, Facebook, and other web services. You can also file a complaint with the Internet Crime Complaint Center. The U.S. Department of Justice provides information on reporting computer, Internet-related, and intellectual property crime. If the harasser is close to home, contact your local police."

I can't help but think there's a better way to ensure everyone can use the Internet without being placed in fear for their well-being or that of their family. We may not need new laws. We just need to start enforcing current laws against credible threats of violence, regardless of the medium used to communicate the threats.

If law enforcement won't make prosecuting online threats a priority, we need to make it a priority for them. The issue has attracted the attention of such media and entertainment figures as HBO's John Oliver and Lena Dunham, yet the U.S. Supreme Court appears to be leaning in the opposite direction. In Elonis v. U.S., the court overturned the conviction of a rapper who posted threats against his estranged wife on Facebook. The New York Times' Adam Liptak writes about the case in a June 1, 2015, article.

The case was decided on statutory grounds rather than being based on any First Amendment principles. The majority found that prosecution under the federal law Elonis was convicted of violating requires intent to carry out the threat, not just a reasonable fear instilled in the victim.

Is it time for an Internet Police Department?

Facebook, Twitter, and other social networks try to police their networks, but as CNET's Ian Sherr reports in a May 13, 2015, post, the services are forever playing catch-up. In a November 17, 2014, post on TechPolicyDaily.com, Ariel Rabkin proposes the creation by large Internet services of private police forces.

Rabkin compares the current state of the unpoliced Internet with the railroad industry in the late 19th century. The railroads traversed multiple jurisdictions, and there were no law enforcement officials patrolling to prevent train robberies. The railroads were given authority by Congress to create their own fully deputized police forces. Rabkin proposes allowing social networks and other online services to hire "sworn law enforcement agents with powers of arrest and the ability to get warrants."

I can see it now: "This is Google. Come out with your hands up!"

Admittedly, such private law enforcement raises a long list of serious legal questions, but as it stands now, the Internet is not a safe place, particularly for women and children. The absence of any authority to enforce the laws is unsustainable. If existing law enforcement agencies are unwilling or unable to police the Internet, then the Internet community is going to have to take on the responsibility and find a way to do so itself.

It's time for the Internet to grow up.

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