“Even 2000 is relatively new for a statute, and particularly this kind of new technology that the law hasn’t had to deal with before, so we haven’t seen a ton of Supreme Court cases that have told us what these words mean, which makes it somewhat difficult to say what the rules are sometimes,” said Todd Collins, director of Western Carolina University’s Public Policy Institute and a former prosecutor.
A law that’s been on the books since 1913 addresses harassment via telephone, but the 2000 cyberstalking law specifically makes it illegal to use email or any “electronic communication” to threaten someone or to repeatedly contact someone “for the purpose of abusing, annoying, threatening, terrifying, harassing, or embarrassing.” A cyberbullying law was later passed in 2009 to focus on protecting minors from online harassment and intimidation.
Basically, Collins said, conviction requires “intent to cause discomfort.”
But that’s often hard to prove in court. There’s no objective number of emails at which the switch flips from mere annoyance to harassment. If someone is using a false name or anonymous email address, it can be difficult to trace the IP address and prove its relationship to a specific person. And sometimes, as in the case of debt collectors who repeatedly contact someone to pay up, there is a legitimate reason for repeated, fear-inducing communication.
“We had cyberstalking on the books,” Collins said of his time as a prosecutor between 2000 and 2003. “We didn’t have that many prosecutions on it because it’s difficult to show the intent that was there.”
The litmus test is “reasonable fear,” which refers to the volume and type of communications that would cause a “reasonable” person to be afraid. It might be a bit of a misnomer to call that a litmus test, though, because it’s really a pretty subjective call.
“It’s going to be kind of different in each case,” Collins said.
And to complicate things further, it’s all tied up with free speech and First Amendment rights. The law contains an exemption for “peaceable, nonviolent, or nonthreatening activity intended to express political views” or provide information.
“Any time we are trying to put a law on any kind of speech, the court’s going to have to balance the fears of the individual, the harassment of the individual, with First Amendment protection folks have,” he explained.
Those considerations can add up to equal limited prosecution of cyberstalking cases.
“For a prosecutor that is dealing with murders and rapes and burglaries and so many other crimes, on the scale of criminal activity this may not rise to the level that they give it, the level of time that the victim thinks it deserves,” Collins said.
Even with a successful prosecution, punishment maxes out at 60 days in prison and a $1,000 fine, and that’s only for people with a significant prior record. In most cases, Collins said, those convicted just receive some kind of parole.
Still, the law has its place and is there for a reason.
“I think of laws as institutionalized norms of behavior,” he said. “What we do by passing this law is we say this is a standard of conduct that we as society think is or is not appropriate.”
Having that standard in place can deter some people from committing cyberstalking in the first place, and it provides a legal tool to stop intimidating behavior before it becomes something more serious.
“Part of the purpose is if you can stop it at this level, you may keep it from becoming more physical,” he said.
Because of the difficulty of proving intent, Collins said, most cases that end up in court culminate with the two parties trying to work out some agreement. But even that isn’t a futile outcome.
“Sometimes being brought to court and hearing that this is conduct society doesn’t approve of and that there are consequences for it, that can be a deterrent,” Collins said.
But technology is still evolving, and the law is still evolving with it. As more cases make it to the N.C. Supreme Court and more judges interpret what the legalese means in real life, the rules will likely get a little clearer. At least, that is, until the next big technological revolution comes around.
“It’s a neat area of law,” Collins said.