Recent amendments to the United States Code are about to be tested by prosecutors in the District of Columbia, who have charged one Robert Murphy with 26 counts of using a telecommunications device ‘to annoy, abuse, threaten and harass’.
The facts of the case reflect an increasingly common experience for ex-partners and employees: the accused and the victim became involved in a relationship when she was 15, which was terminated when she was 22, 13 years ago. Over a period of 5 years, it is alleged that Murphy sent ‘obscene and sexually explicit messages and pictures’ to his ex-girlfriend and her colleagues via e-mail. Investigators say they have evidence that suggests Murphy used information publicly available on the Internet to follow his ex-girlfriend as she moved between states, houses, and jobs.
The victim said she ignored this conduct for the first four years, Murphy not having made any attempts to contact her in the analogue world. She deleted the messages and their attachments for a period of four years, but then – after prohibitions on stalking were amended in 1997 to include electronic harassment – she approached police, saving the messages for evidence.
Murphy is the first person to face charges since the amendment of 47 USC 223, which provides that:
Whoever – by means of a telecommunications device knowingly – makes, creates, or solicits, and initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person; shall be fined under title 18 or imprisoned not more than two years, or both.
If Murphy’s communications are proved to be as the victim claims, it seems likely that the conduct will fall under the ambit of s 223 (a)(1).
The required intent is that to ‘annoy, abuse, threaten, or harass’. It will be interesting to see what evidence is adduced by the prosecution from which an inference of intent may be drawn, and how the courts treat repeated electronic communications as compared with physical acts of stalking. There are potential distinctions between sending e-mail messages (which might or might not give rise to an inference of an intent to harass) and acts causing real-world effects.
If this were the case, then the sending of bulk commercial e-mails (provided for under s 233(2) of the Code) – particularly those of a sexually explicit nature – might also be considered harassments. Such violations would incur a $50 000 penalty per violation (of which there is a limit of one per day; s 233 (4)).
Upon closer examination, two problems with the legislation’s wording become evident, though neither of which is applicable to the facts of the present case. Firstly, an accused is only required to ‘initiate the transmission of’ an offending communication. The requirement of mere initiation (rather than receipt) makes it possible for messages sent, but not received – as, for example, a result of ‘filter[ing], screen[ing], or disallow[ing] content’ – to still attract liability.
Such a definition is unwanted because it reconceptualises the crime of stalking as one based on acts and not consequences. This does not draw adequate attention to the effect of the accused’s conduct upon the victim, which should, I would submit, be the locus of the crime. Thus, whether sending a particular electronic message is capable of constituting an assault should be predicated upon the victim’s actual apprehension of harm or feeling of harassment, and not any objective assessment of whether the content or nature of the message is ‘obscene, lewd, lascivious’, or the like.
The second problem is one of knowledge. In an electronic context, it is possible for messages to be delivered automatically, or without the sender’s consent (as, for example, is the case with forged address headers used to mask the real sender of mail). The ease with which electronic communications can be forged or redirected poses real problems, possibly leading to false accusations.
The legislation does provide for ‘knowingly’ allowing a communications service under the accused’s control to be used as a vehicle for stalking (s (d)(2)) – but this requirement could go too far. Courts have, in the past, treated electronic evidence in respect of a requirement of knowledge very leniently, allowing an accused to easily disavow knowledge of their wrongful conduct (the so-called ‘luddite defence’). A better solution might be to simply emphasise the requirement of voluntariness. If an accused doesn’t send a message voluntarily, they cannot be held liable for its effect upon the recipient.
The anonymity of electronic communications could also pose a difficulty. Though a victim may know the identity of his or her aggressor, how are prosecutors to prove a connection between the sender and the accused? Such a problem is, however, less concerned with the legislation itself, and more a problem of cyber criminal law generally.
Regardless of the issues facing the new legislation, it would appear it is a step in the right direction. As the Internet continues to broaden the possibilities for electronic communication – with online dating, instant messaging, community forums in increasing use – the possibilities for harassment and assault widen. Legislation that addresses the specific problems associated with electronically-committed assaults, but which retains unity with conventional common law approaches, is essential if legislators are to arrive at a workable framework for the prosecution of electronic offenders.
