What the Law Can (and Can't) Do About Online Harassment
Over a third of women report being stalked or threatened on the internet. Here's what the justice system actually says about their options.
It was late summer when we met, on a patio jutting out onto the Pacific. The night was still warm as I sipped my Gewürztraminer and asked him about his exciting career. His articulate responses drew me in, and I breathed back nerves and adrenaline with the ocean air as we continued this perfect first date.
As busy professionals, our schedules rarely overlapped so the digital flirtation commenced. It didn’t take him long to ask me to send him a “saucy photo” (his words) and it didn’t take long for me to tell him that just wasn’t my thing. At least not until the third date, I joked.
Days later, Jennifer Lawrence and over 100 other women were exposed across the internet. I sent him a “you see” message. He sent me an almost full frontal—via Snapchat—back. He was sexually liberal. I’m basically a Victorian, but I thought we might be able to find a happy medium in the modern era. I agreed to a second date.
Two minutes in, or perhaps when he asked me if I wanted to leave the restaurant and go take a bath together, I realized we were looking for different things. I turned my cheek when he went to kiss me goodbye, and was pleased there would be no more penis pictures in my life. After ignoring a couple text messages from him, I told him I was busy, but kept it polite. A few days later, he sent me a Snapchat video. It was a close-up shot of him masturbating for 10 seconds.
It wasn’t a “let’s fuck.” It was a “fuck you.” And most importantly, it felt like a threat.
“Unwanted sexual contact online—it’s something we take seriously,” said Scott Berkowitz, the founder and president of the Rape, Abuse, and Incest National Network. The U.S. Department of Justice statistics suggest that 850,000 American adults—mostly women—are targets of cyberstalking each year, and 40 percent of women have experienced dating violence delivered electronically. A recent study by the Pew Research Center found 40 percent of adult internet users have experienced harassment online, with young women enduring particularly severe forms of it. Thirty-eight percent of women who had been harassed online reported the experience could be described as extremely or very upsetting to them. “When gender and severe harassment combine, the results are especially stark,” writes the report’s author, Maeve Duggan.
I was lucky. I deleted our contact history from my phone and blocked him. Case closed. But for thousands of women, and some men, the consequences of online actions have been dire. Amanda Todd, a 15-year-old from British Columbia, Canada, tragically ended her life, citing two years of online extortion and cyberbullying from a sexual predator as the cause of her depression. Opera singer Leandra Ramm said she devoted an entire decade of her life fighting a cyberstalker. Most recently, Jennifer Lawrence told Vanity Fair that when a hacker stole nude photos from her phone and posted them online, she feared for her career and labeled it a sex crime.
But what, exactly, is the crime?
When our digital space is invaded with sexual harassment, violent messages, and threats; or when our private data, information, and photographs are exposed, it feels like it should be against the law. “It is not a scandal. It is a sex crime,” Jennifer Lawrence told Vanity Fair after her photos were leaked. “It is a sexual violation. It’s disgusting. The law needs to be changed, and we need to change.”
Right now, there are a handful of ways victims can address their attackers through the legal system, both civilly and criminally. Unfortunately, many of them are costly and invasive, and combined with a lack of education and precedent, these channels don’t always offer the justice people are seeking. The law is notoriously slow to adapt to technology, but legal scholars say that if done right, the law can be used as a tool to stop this behavior.
At its most basic legal definition, “cyberstalking is a repeated course of conduct that’s aimed at a person designed to cause emotional distress and fear of physical harm,” said Danielle Citron, a professor at the University of Maryland’s Francis King Carey School of Law. Citron is an expert in the area of cyberstalking, and recently published a book called Hate Crimes in Cyberspace. Citron told me that cyberstalking can include threats of violence (often sexual), spreading lies asserted as facts (like a person has herpes, a criminal record, or is a sexual predator), posting sensitive information online (whether that’s nude or compromising photos or social security numbers), and technological attacks (falsely shutting down a person’s social-media account). “Often, it’s a perfect storm of all these things,” she said.
When this happens to a victim, they can take their complaint to one of the justice system’s two worlds: criminal or civil. In the civil court, victims of these kinds of cyberattacks, including stalking, revenge porn, and online bullying, can sue their harassers through something called tort law, otherwise known as civil wrongs. There, victims can claim the torts of defamation, intentional infliction of emotional distress, harassment, and public disclosure of private fact, said Citron, depending on the specifics of the case. But unless you have Jennifer Lawrence’s resources, this isn’t exactly realistic: Filing a case like this is a very expensive and time-consuming process, not to mention emotionally draining.
Citron can only think of three or four reported cases in America where victims have successfully been awarded a monetary judgment against their online harassers. A public court case can also bring unwanted attention to the situation. Citron cites the case of a woman from Hawaii who wanted to sue the person who posted her nude photos online, but sought permission to do so as “Jane Doe” so her reputation wouldn’t be further maligned. She was denied by the court, in a decision that demonstrates the “practical limits” of tort law for stopping online abuse, said Citron.
Where victims have had a modicum more success in the civil sphere, is by threatening to sue, or even actually suing, for copyright violation if a website is displaying photos that were originally taken by the victim. Since copyright forms upon the creation of a work, generally it’s the photographer who holds the right to the image. Self-taken photos—nude or not—are owned by the photographer unless otherwise assigned, so a website displaying those photos without consent is violating copyright.
In the world of criminal law, federal cyberstalking laws, in place since 2011, include language allowing prosecutors to go after people using electronic tools to harass. These laws specifically stipulate that an “interactive computer service” cannot be used to threaten. Citron said approximately half of the states in the U.S. have also updated their laws to allow authorities to press charges against people engaging in cyberstalking and cyberharassment. As early as 1999, shortly after California enacted the country’s first cyberstalking legislation, Gary Dellapenta was charged and eventually convicted to six years in prison for placing online ads and responding to emails in a woman’s name about rape fantasies, which led to men showing up at her apartment.
So in states with specific cyberstalking and cyberharassment laws like California, Illinois, and Massachusetts, theoretically victims can press criminal charges against their online stalkers and harassers. (Theoretically because, as we’ll get into later, that doesn’t always happen the way it should.) But for those living in a state without these laws, there is little other recourse.
Take, for example, the case of Ian Barber, in what was New York’s first “revenge porn” case. According to court documents, it’s alleged that in 2013 Barber posted naked pictures of his then-girlfriend to his Twitter account and sent the photos to her employer and sister. He was charged with three offenses, including aggravated harassment in the second degree.
However, Judge Steven Statsinger of the Criminal Court of the City of New York dismissed all three charges. With respect to the charge of aggravated harassment, the offense requires the defendant to have communicated with the victim, either anonymously or otherwise, through telephone, telegraph, mail, or any other form of written communication. Since Barber did not send the photos to his girlfriend, the judge concluded he could not be held responsible under this section of the penal code. Essentially, Citron said, the law hasn’t been updated to reflect the realities of the internet.
“We can and we should reform those laws,” said Citron. But it can be hard to rewrite laws over and over as technology changes. This is why Citron favors what she calls “technologically neutral” language that can withstand changes in the digital world. “Look at the 2013 amendment to the Federal Telecommunications Harassment Statute,” Citron said in an email to me. “Congress replaced the language, ‘harass any person at the called number or who received the communications,’ with ‘harass any specific person.’”
Some states have already criminalized the distribution of sexual images. Citron wrote in Slate that New Jersey was the first to make it a criminal invasion of privacy to disclose sexual images without consent, in 2004. In Canada, the government has tabled legislation colloquially referred to as the Protecting Canadians From Online Crime Act, according to a report on cyber misogyny, prepared by the West Coast Women’s Legal Education and Action Fund (LEAF).
The bill—if enacted—would make it a criminal offense across the country to nonconsensually publish intimate images, and would also grant a court the power to order a Canadian internet service provider to delete the images from its server. In the United States, Citron also suggests narrowly amending section 230 of the Communications Decency Act, which currently grants website operators immunity for publishing these photos. (Critics say this could curtail important First Amendment rights.)
According to Laura Track, the legal director at West Coast LEAF, the Canadian Bill would also add the grounds of sex to the hate-crimes provision of the Criminal Code of Canada, something Citron said is underutilized in a civil-rights context in America. For instance, under California’s Bane Civil Rights Act, someone who commits harassment motivated by bias, including a victim’s sex, may be subject to enhanced sentencing penalties. But Citron said the 10 cyberstalking cases prosecuted over the last three years in California all targeted women and none of them sought increased penalties using civil-rights laws.
“This activity is not just a wrongful assault online, it is unjust discrimination … singling out [victims] because of their sex,” said Citron. The GamerGate campaign and the horrifying threats of violence, rape, and murder that prominent women in the video-game community like Brianna Wu and Anita Sarkeesian have endured online is illustrative of this. These threats have forced these women to file reports with the police, flee from their homes for safety, and cancel university lectures. These are clearly examples of gendered attacks, and could, theoretically, be prosecuted as such.
But it’s not always the lack of legal precedents that’s at issue—it’s also gaps in police-force education. In her research, Citron said she has found that many police agencies aren’t allocating resources to fighting this type of crime. Often victims who go to the police are told it’s a civil matter, not a criminal one, when there are indeed criminal laws in place to stop the harassment. Many police forces “just don’t have the training,” Citron said. “We can do better on that.”
This is why the question “Why didn’t she just go to the police?” is often a bad one—one that ignores the reality of what the authorities are willing to do for victims. Take the case of feminist blogger Rebecca Watson. Watson writes that in 2012, she came across a website of a man who was writing about murdering her. After some research, she tracked down his real name and location (which was within a three-hour drive of her home). She called the police department in that jurisdiction, her own, and the FBI, but after some initial questions, she said the authorities didn’t seem to care. “I’ve lived in several different cities … and received several frightening threats, and never have I met a single helpful cop who even made an attempt to help me feel safe,” she writes. Amanda Hess keeps a running file of people who make online death threats against her, she explains in her oft-cited article, "Why Women Aren’t Welcome on the Internet." The first time she filed a report about a man threatening to murder her, the police officer asked her, “Why would anyone bother to do something like that?” and decided not to file a report.
So without the support of the police, and in the face of confusing and unhelpful laws, what should women who face harassment online do? There are some initial steps victims can take to protect themselves, said Jayne Hitchcock, president of Working to Halt Online Abuse, in a recent phone interview. First, even though they may not be helpful, she encourages victims to tell the relevant authorities, and clearly tell their harasser to stop contacting them. Then, they should stop responding to messages or online communications from their harasser. And though it’s tempting to delete the messages, Hitchcock said everything should be kept and documented both within whatever app or system the messages were sent, and with screenshots in case the harasser tries to delete the messages themselves.
If the communications are coming from a free email or social-media account, Hitchcock said users should file complaints with the company, report the messages to social-media outlets, and block the person from their phone or friends list. Of course, social-media companies generally don't have a great record of dealing with abuse either. But Hitchcock said that reporting the abuse is still worth doing, if only to cover your bases.
In December, the Supreme Court of the United States will hear the case of Elonis v. United States. According to court documents, Anthony Elonis was sentenced to 44 months in prison after he was convicted in the Eastern District of Pennsylvania for threatening to kill his (now ex-) wife, via violent Facebook postings.
“There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts,” reads one of the posts, written in 2010. Elonis argues these were rap lyrics and since they were transmitted over the internet, weren’t demonstrative of a “true threat,” which requires a subjective intent, he said. Court documents indicate his ex-wife testified as to their impact on her: “I felt like I was being stalked. I felt extremely afraid for mine and my children’s and my family’s lives,” she told the court.
The Supreme Court’s decision on this case will solidify how the intent to threaten a person translates online. Slate’s Dahlia Lithwick said the case is important not only for clarifying the doctrine around true threats and free speech, but also “in pushing the conversation about law enforcement, prosecution, and threats to include a much more sophisticated understanding of the ways in which the Internet is not just a rally or a letter.”
Indeed, it seems to be a conversation that needs to be pushed both inside and outside of courtrooms. No amount of legal updating is going to solve the problem of gender-based harassment online. That’s a societal issue, as much as it is a legal one. But when stalkers, harassers, and online bullies can safely operate under the assumption that they’ll never be caught, much less tried for their attacks, it might be time to revisit the laws, policies, and practices that protect them as virtual reality becomes our reality.
I was shocked when a man I barely knew sent me a message of himself masturbating. It felt gross, and like a violation of my online space, which up until then had been relatively safe. I understand now, however, how lucky I’ve been, and how much worse it could have gotten. The internet has become just another alley in which women must walk faster and look over their shoulders into the night. But at least the streets have clear laws.