Cyberstalking, Still Ignored (Really)
posted by Danielle Citron
Since Friday, the news has been abuzz about the resignation of General Patraeus and the FBI investigation of alleged cyber stalking that led to the exposure of his affair and potential security risk — blackmail — that such an affair raises. According to today’s New York Times and other media coverage, the FBI agent who spearheaded the cyber stalking investigation was not really seeking to enforce the federal Interstate Stalking law. Instead, the agent thought, “This is serious” because the e-mail sender “seem[ed] to know the comings and goings of a couple of generals.’” The FBI agent supposedly worried that might suggest the Generals were being stalked in ways that could compromise national security. The Times explains that the agent “doggedly pursued Ms. Kelley’s cyberstalking complaint,” despite being admonished by supervisors who thought he was trying to improperly insert himself into the investigation. What’s clear: the agent pursued a criminal investigation of Ms. Broadwell for allegedly stalking Ms. Kelley (though it’s clear that is not the stalking that worried the FBI), which served as the basis for the warrant obtained by the FBI to retrieve Broadwell’s e-mails and ultimately obtain the e-mails of General Patraeus. This investigation used cyber stalking of Ms. Kelley as a pretext to obtain Ms. Broadwell’s e-mails and hence to better understand what the agent thought was the sexual nature of the relationship between Ms. Broadwell and the General.
On first hearing about the investigation, I never kidded myself that the FBI was taking cyber stalking seriously. That is not to say that they never do, but the typical response to cyber stalking complaints is to advise victims to turn off their computers, to return to the precinct when their stalkers confront them offline, to pursue their harassers with civil suits, and/or to ignore their attackers who will eventually get bored. Or as cyber stalking victims have told me, law enforcement agents, both federal and state, incorrectly tell them that criminal law provides little help to cyber stalking victims. (Federal and state law often does punish repeated online conduct directed at private individuals for no legitimate reason that is designed to cause substantial emotional distress that does in fact cause substantial emotional distress, 18 U.S.C. 2261A(2)(A)). Indeed, little has changed since the Department of Justice reported in 2001 that the majority of law enforcement agencies refused to investigate cyber stalking cases because they lacked training to understand the seriousness of the attacks and the potential legal responses. Part of the problem may be attributable to officers’ poor response to stalking generally. According to the 2009 National Crime Victimization Survey, stalking continues to be frequently overlooked and often misunderstood. Half of those surveyed explained that officers took a report and did nothing else. Almost 19% reported that officers did nothing at all. They attributed police inaction to a lack of interest in getting involved, a sense that no legal authority existed, and incompetence. Lack of training and troubling social attitudes are to blame for criminal law’s under-enforcement.
November 15, 2012 at 11:42 am
Posted in: Culture, Current Events, Cyber Civil Rights, Privacy, Privacy (Electronic Surveillance)
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Responses (4)
Orin Kerr - November 15, 2012 at 1:14 pm
Interesting post, Danielle. 18 U.S.C. 2261A was somewhat controversial when it was proposed, and as a result the statute as enacted is relatively narrow and the element of “substantial emotional distress” is pretty vague. My sense is that this makes 2261A cases harder to investigate (for example, probable cause to get a warrant usually requires probable cause to think the target and wrongdoer are in different states) and harder to get juries to convict. I suspect that explains why investigators tell victims that the law offers relatively little protection: At the federal level, these are relatively hard cases to investigate and prosecute given the narrowness of the statute. And at the state level, it’s often hard for states to investigate these cases because of the common interstate element. That’s my sense, at least.
Polygon - November 15, 2012 at 2:57 pm
Once cyber stalking happens to a lawmaker or his family something will be done about it. Until then just use an abundance of caution while surfing the world wide web.
Danielle Citron - November 15, 2012 at 4:22 pm
Thanks, Orin. That is a valuable point and helpful–that there are unknowns that get in the way of a warrant, especially the interstate piece. Interestingly, that is not often the stated explanation to victims who are told that criminal law does not cover cyber stalking or that boys will be boys, etc. There, inadequate training and social attitudes are to blame, not the narrowness of the statute. There have been prosecutions under 2261A but in cases with extreme facts that have led to offline stalking. It seems that there are ten or so cases on PACER involving 2261A in the past two years. We can and should do better. I’m hoping my book helps on the education piece, sigh.
Orin, what do you make of the government overreach in this case? Do you view it as I do–as a pretextual investigation. Funny how this case broke just as we sat together at the HLR conference, and together with Neil we were talking about governmental surveillance of e-mail!
Orin Kerr - November 15, 2012 at 5:27 pm
Thanks, Danielle. I think it’s hard to know if there was government overreach in this case. We’ve only heard snippets of what led the government to start the investigation, and it looks like a lot of the fallout from the case was due to Petraeus’s extremely sensitive position rather than any overreach. From what I can tell, the only clear example of abuse is the behavior of the FBI agent who went to Congress on his own to try to drum up political pressure on the investigation.
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