Wednesday, February 8, 2012

Cyberstalking and Electronic Harassment: How far should Facebook "creeping" go?

By Attorney Jeffrey R. Hall, for Hall & Rustom, LLC 

As technological advances in communication progress, so too will potential crimes involving electronic and telephone communication.  Over the past few years, states like Illinois have enacted laws that criminalize behavior involving threats that create a "reasonable apprehension of receiving some harm" to a person involved in the communication.  Simply stated, states like Illinois have criminalized threatening someone through electronic communications.

Throughout the news airwaves, we all heard the horrific story of the mother from Missouri that created a social networking account under a fake profile and proceeded to encourage a young teenage girl to kill herself.  This type of irresponsible behavior is deplorable.  While it was not considered criminal before, it could be now.  This story, as well as other harassment stories, provided an impetus for lawmakers to draft legislation criminalizing a broad range of communication.

Presently, there are two types of electronic harassment statutes in Illinois:
  1. Telephone Harassment or Harassment through Electronic Communications (720 ILCS 135/1/2), and;
  2. Cyberstalking (720 ILCS 5/12-7.5)
So what are the differences between the two?  First, Cyberstalking is a class 4 felony and telephone harassment is a Class B misdemeanor.  But what are the other differences?  Let's look at the statutes:

Telephone (Electronic) Harassment (720 ILCS 135/1/2)

Sec. 1-2. Harassment through electronic communications. (a) Harassment through electronic communications is the use of electronic communication for any of the following
purposes:

(1) Making any comment, request, suggestion or proposal which is obscene with an intent to offend;

(2) Interrupting, with the intent to harass, the telephone service or the electronic communication service of any person;

(3) Transmitting to any person, with the intent to harass and regardless of whether the communication is read in its entirety or at all, any file, document, or other communication which prevents that person from using his or her telephone service or electronic communications device;

(3.1) Transmitting an electronic communication or knowingly inducing a person to transmit an electronic communication for the purpose of harassing another person who is under 13 years of age, regardless of whether the person under 13 years of age consents to the harassment, if the defendant is at least 16 years of age at the time of the commission of the offense;

(4) Threatening injury to the person or to the property of the person to whom an electronic communication is directed or to any of his or her family or household members; or
(5) Knowingly permitting any electronic communications device to be used for any of the purposes mentioned in this subsection (a).

(b) As used in this Act:

(1) "Electronic communication" means any transfer of signs, signals, writings, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectric or photo-optical system. "Electronic communication" includes transmissions by a computer through the Internet to another computer.

(2) "Family or household member" includes spouses, former spouses, parents, children, stepchildren and other persons related by blood or by present or prior marriage, persons who share or formerly shared a common dwelling, persons who have or allegedly share a blood relationship through a child, persons who have or have had a dating or engagement relationship, and persons with disabilities and their personal assistants. For purposes of this Act, neither a casual acquaintanceship nor ordinary fraternization between 2 individuals in business or social contexts shall be deemed to constitute a dating relationship.

(c) Telecommunications carriers, commercial mobile service providers, and providers of information services, including, but not limited to, Internet service providers and hosting service providers, are not liable under this Section, except for willful and wanton misconduct, by virtue of the transmission, storage, or caching of electronic communications or messages of others or by virtue of the provision of other related telecommunications, commercial mobile services, or information services used by others in violation of this Section.

(Source: P.A. 95-849, eff. 1-1-09; 95-984, eff. 6-1-09; 96-328, eff. 8-11-09.)

So what does this mean?

This statute could (depending on the totality of the circumstances) criminalize the following actions:

  1. Continuous calling with the intent to harass or interrupt the phone service of any person.
  2. Sending harassing pictures, files, graphics, etc. with the intent to harass.  (Don't send a picture of a gun and say, "Bang, you're next."  That would likely be a crime under this statute.
  3. Transmitting a communication to a child under 13 years of age for the purpose of harassing them. (Parents:  Don't get involved in your children's petty fights with other classmates.  You may commit a crime under this statute without knowing it).
  4. Threatening to injure someone in a phone call.
  5. Allowing someone to use your phone to threaten someone via electronic communication.
Violating this statute is a Class B Misdemeanor, punishable up to six (6) months in jail and/or a $1500 fine.

Cyberstalking (720 ILCS 5/12-7.5)

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-3)      A person commits cyberstalking when he or she, knowingly and without
lawful justification, on at least 2 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 a family member of that person in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement, or restraint; or

(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-5)      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, or

(2) which places that person or a 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 a violation of this Code directed towards that person or a family member of that person.

(b) Sentence. Cyberstalking is a Class 4 felony. A second or subsequent conviction for cyberstalking is a Class 3 felony.

(c) For purposes of this Section:

(1) "Course of conduct" means 2 or more acts, including but not limited to acts in which a defendant directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, threatens, or communicates to or about, a person, engages in other non-consensual contact, or interferes with or damages a person's property or pet. The incarceration in a penal institution of a person who commits the course of conduct is not a bar to prosecution under this Section.

(2) "Electronic communication" means any transfer of signs, signals, writings, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system. "Electronic communication" includes transmissions by a computer through the Internet to another computer.

(3) "Emotional distress" means significant mental suffering, anxiety or alarm.

(4) "Harass" means to engage in a knowing and willful course of conduct directed at a specific person that alarms, torments, or terrorizes that person.

(5) "Non-consensual contact" means any contact with the victim that is initiated or continued without the victim's consent, including but not limited to being in the physical presence of the victim; appearing within the sight of the victim; approaching or confronting the victim in a public place or on private property; appearing at the workplace or residence of the victim; entering onto or remaining on property owned, leased, or occupied by the victim; or placing an object on, or delivering an object to, property owned, leased, or occupied by the victim.

(6) "Reasonable person" means a person in the victim's circumstances, with the victim's knowledge of the defendant and the defendant's prior acts.

(7) "Third party" means any person other than the person violating these provisions and the person or persons towards whom the violator's actions are directed.

(d) Telecommunications carriers, commercial mobile service providers, and providers of information services, including, but not limited to, Internet service providers and hosting service providers, are not liable under this Section, except for willful and wanton misconduct, by virtue of the transmission, storage, or caching of electronic communications or messages of others or by virtue of the provision of other related telecommunications, commercial mobile services, or information services used by others in violation of this Section.

So what does this mean?

First, a violation of this statute is a class 4 felony.  So think before you type.

Second, you have to be careful not to use your computer or phone communication abilities when you know or should know that a reasonable person would 1) fear for their safety or 2) suffer emotional distress from your actions.

For example, if you text someone from your phone saying, "I'm going to kill you. I'm on my way over to your home right now," that would likely be a violation of this section.  However, it's unclear whether threatening one (1) time would constitute a violation because the next section states that it has to happen on at least 2 separate occasions AND 1) you threaten future bodily harm, sexual assault, confinement, etc., OR 2) your threat places a person or a family member of that person in reasonable apprehension of immediate or future bodily harm.

This statute sounds similar to the telephone harassment statute; however, it goes a step further to require the communication be repeated (more than 2 times) and that it leads to a reasonable apprehension of harm being caused to the recepient. 

This law is relatively new so there is not much case law defining what these sections actually mean.  Simply use your common sense and try not to threaten with the intent of harassing another person.

It is strongly advised to not create false accounts on social networking sites such as Facebook.  Prosecutors could file charges so long as they have probable cause you committed an offense.  If they have ample evidence that you created a false profile with the intent to harass or threaten someone, you could open yourself up to criminal charges.

Will I be formally charged with this crime?

Your county's prosecuting authority has the sole discretion in filing these charges against you.  The police simply investigate a complaint and then report it to the prosecuting authority.  While you should not use your electronic communications to transmit threatening messages, you should use your discretion and understand that you COULD be charged with a crime if it's reported by the police. 

I regularly advise my clients with children to monitor their online activity.  While you cannot monitor every form of communication, you can play an active role in educating yourself and your child in treating people as you would like to be treated.  If you have allowed your children the privilege of a cell phone, there is software that helps you monitor, block, and record certain activity.  Further, you should pay attention to what your child is doing because you could be held responsible in some situations. 

You have to be aware that some actions lead to greater consequences.  Read the above statutes carefully and then make your own decisions.

If you have further questions, please visit our website at www.centralillinoislawyers.com and complete our online submission form. Or, you can call our office at 309-699-4691 or email us at how@howlawfirm.com.

LEGAL DISCLAIMER

The use of the Internet or this form for communication with the firm or individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form nor should the reader rely on the information listed above as true in all circumstances. This information is provided generally and any similarity between the information listed above and an individual reader's case is purely coincidental.

The attorneys at Hall & Rustom LLC represent clients throughout the entire state of Illinois, including, but not limited to, the cities of Peoria, Morton, Washington, Pekin, Eureka, East Peoria, Dunlap, Metamora, Bartonville, Bloomington, Normal and any legal matter located in Peoria County, Tazewell County, Woodford County, Marshall County, Stark County, Henry County, Knox County and McLean County.


Article Author: Jeffrey R. Hall




Jeff Hall is managing partner at Hall, Rustom & Fritz LLC and concentrates his law practice in Criminal Law, DUI & Traffic law, driver's license reinstatement hearings and criminal record expungements.

If you have a legal question, email Jeff Hall.



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