by David L. Hudson Jr., First Amendment Scholar
Updated January 2013
Cyberstalking refers to a pattern of harassing or threatening behavior communicated through electronic means that places a victim in reasonable fear of bodily harm. The laws generally require that, to be considered cyberstalking, the electronic communications have “no lawful purpose” and cause serious “emotional distress” to their intended recipients.
State and federal laws have been passed in the last decade to address this type of harassing conduct. California passed the first anti-cyberstalking law in 1999. California also passed the first stalking law in general in 1991 after the murder of actress Rebecca Schaeffer by an obsessed fan.
The National Conference of State Legislatures provides a list of these laws, pointing out that a few states use the term “cyberharassment” instead of “cyberstalking.”
Critics contend that some of these laws are too broad and criminalize protected speech. They charge that the laws could apply to intemperate speech that doesn’t rise to the level of a threat or real harassment. Supporters counter that the laws involve unprotected conduct or unprotected speech, such as true threats.
Over time, legislators have amended and expanded cyberstalking laws to cover a wider range of electronic communications. Consider the detail in Illinois’ cyberstalking statute:
“A person commits cyberstalking when he or she engages in a course of conduct using electronic communication directed at a specific person, and he or she knows or should know that would cause a reasonable person to:
(1) Fear for his or her safety or the safety of a third person; or
(2) Suffer other emotional distress.
“A person commits cyberstalking when he or she, knowingly and without lawful justification, on at least two separate occasions, harasses another person through the use of electronic communication and:
(1) At any time transmits a threat of immediate or future bodily harm, sexual assault, confinement, or restraint and the threat is directed towards that person or a family member of that person; or
(2) Places that person or family member of that person in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement, or restraint;
(3) At any time knowingly solicits the commission of an act by any person which would be a violation of this Code directed towards that person or a family member of that person.
“A person commits cyberstalking when he or she, knowingly and without lawful justification, creates and maintains an Internet website or webpage which is accessible to one or more third parties for a period of at least 24 hours, and which contains statements harassing another person and:
(1) Which communicates a threat of immediate or future bodily harm, sexual assault, confinement, or restraint, where the threat is directed towards that person or a family member of that person;
(2) Which places that person or family member of that person in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement, or restraint, or
(3) Which knowingly solicits the commission of an act by any person which would be in violation of this Code directed towards that person or a family member of that person.”
An Illinois appeals court upheld a 2008 version of this law from a First Amendment challenge in People v. Sucic (2010). The defendant argued that the law was overbroad and criminalized protected speech – such as practical jokes sent by e-mail. The appeals court rejected this argument, noting the statute was confined to covering communications sent “without lawful justification” and meant to harass.
Contrast that with Florida’s law, which defines “cyberstalk” as “to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.”
Federal law (18 USC 2261) also prohibits cyberstalking, criminalizing the use of the mail or “any interactive computer service, or any facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress to [a] person or places that person in reasonable fear of the death of, or serious bodily injury to” the person.
Federal courts have rejected First Amendment challenges to this federal cyberstalking law in United States v. Bowker (6th Cir. 2004)(reversed on other grounds) and United States v. Shrader (U.S. Dist. W.V. 2010).
Cyberstalking controversies still exist. The Senate is considering a proposal that would limit a so-called cyberstalking app on cell phones that would allow a person to keep track of another person.