MySpace-hoax trial shines light on federal cyberbullying bill

Thursday, November 20, 2008

As federal prosecutors in California began this week to try a Missouri woman on charges of online fraud in connection with the suicide of a teenager, a bill to more directly confront cyberbullying remains in a congressional subcommittee.

The Megan Meier Cyberbullying Prevention Act, introduced in May by Linda Sanchez, D-Calif., would amend Title 18 of the United States Code to punish electronic harassment. The bill, named after the Missouri teen who was the victim of a MySpace hoax and subsequently committed suicide in 2006, remains in the House Subcommittee on Crime, Terrorism and Homeland Security.

Under the bill, Section 881 of Title 18 would describe and penalize cyberbullying thus: “Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.”

Findings included in the bill from congressional hearings on the topic revealed that with Internet technology readily available to youth, there is potential for “online victimization” possibly resulting in psychological problems. The findings note that more than half of the mental-health professionals surveyed on Internet mental-health issues said they had treated a patient with “problematic internet experience,” with half of the patients being 18 or younger.

“Without a federal law making cyberbullying a crime, cyberbullies are going unpunished,” Sanchez said in a May 22 press release.

Rep. Kenny Hulshof, R-Mo., co-sponsored the federal legislation with Sanchez. “This bill establishes a fair legal standard,” he said in the press release. “It sets needed limits for online conduct while protecting free speech.”

Thirteen states already have laws on cyberbullying, according to the National Conference of State Legislatures. Missouri is the latest state to enact such legislation, in July, after the high-profile suicide of St. Louis teenager Meier. Meier committed suicide in October 2006 after she received cruel messages from an online friend named “Josh” through the social-networking Web site MySpace. According to the Sanchez press release, one of “Josh’s” last messages told Megan, “the world would be better off without you.” Investigations later revealed that “Josh” was an alias. The mother of a former friend of Megan’s, Lori Drew, has been charged under the Computer Fraud and Abuse Act with creating the MySpace hoax.

“Social-networking sites and technology have opened a new door for criminals and bullies to prey on their victims, especially children,” Missouri Gov. Matt Blunt told the Associated Press July 1 after signing the bill. “This new law will ensure that we have the protections and penalties needed to safeguard Missourians from Internet harassment.”

The Missouri measure updated an existing state law to include communication from computers, text messages, and other electronic devices among the forms of expression in which harassment can occur. Previously the law had limited harassing communication to written or telephoned messages, so at the time of Meier’s death, there was no Missouri state law under which to charge anyone.

Because of this lack of a state cyberbullying law, federal prosecutors in California, where MySpace computer servers are based, have charged Drew under the Computer Fraud and Abuse Act. The federal law makes it a crime to access a computer without authorization in order to obtain information. Because this act makes no mention of emotional distress, however, U.S. District Judge George Wu conducted a hearing on Nov. 14, at which he decided to allow evidence from the suicide to be admitted in Drew’s trial, which is set to begin once jury selection is complete.

State laws regarding cyberbullying vary in extent. According to the National Conference of State Legislatures, Idaho, Missouri and Oklahoma are stricter than other states in identifying cyberbullying as an illegal act. In Idaho, for example, a student who commits cyber harassment is guilty of a misdemeanor. Other states, such as Arkansas and Iowa, require schools to include cyberbullying in their anti-harassment policies. Delaware, Michigan, Minnesota, New Jersey, Oregon, South Carolina and Washington all have laws barring cyberbullying.

Free-speech advocates have questioned the constitutionality of cyberbullying legislation. When such bills were initially discussed by Congress in 2007 after Meier’s suicide, James Tucker, Policy Counsel for the American Civil Liberties Union, warned about potential dangers.

“Cyber-bullying is a loaded term to be avoided by anyone interested in engaging in an objective look at online speech,” he wrote in a Jan. 16, 2008, blog entry. “Like past legislative attempts to justify online censorship, such as the Deleting Online Predators Act and the Securing Adolescents from Exploitation-Online Act, the term is intended to stack the deck against the First Amendment. Specifically, it is meant to imply the regulation of unlawful conduct, not the censorship of protected speech, under the guise of protecting children.”

University of California at Los Angeles law professor Eugene Volokh, author of the textbook The First Amendment and Related Statutes, also criticized cyberbullying legislation, specifically the proposed Megan Meier Act.

“This is clearly unconstitutional,” he wrote in a June 5, 2008, blog entry. “In Hustler v. Falwell, the Supreme Court held that even civil liability for ‘outrageous’ behavior that recklessly, knowingly, or purposefully causes ‘severe emotional distress’ violates the First Amendment when it’s about a public figure and on a matter of public concern. Many, though not all, lower courts have held the same whenever the statement is on a matter of public concern, even about a private figure.”