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Cyberstalking, Still Ignored (Really)

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4 Responses

  1. Orin Kerr says:

    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.

  2. Polygon says:

    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.

  3. Danielle Citron says:

    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!

  4. Orin Kerr says:

    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.