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.