By Ian Osteen
Edited by Kevin Hollinshead and Lindsay E. Landstrom
The recent Manti Te’o debacle illustrated a significant sociological quandary Millennials face. Anonymity is both something that makes the Internet a valuable tool and a dangerous weapon. It allows people to seek out and express ideas without the fear of being stigmatized, thereby widening the social forum and perhaps furthering tolerance. However, it also creates a level of vulnerability and the possibility of exploitation, because people have to look to intangible characteristics of an inanimate object (i.e. pictures or words on a computer screen) rather than a person to determine its relative scale of truth.
A context in which one recognizes this dichotomy is that in the life of an American youth. Cyberbullying has been a pervasive subject since it entered the public conscience in the mid 2000’s.Authorities have struggled with how to manage or counteract the problem, especially in light of the exponential growth of social media. It is ironic that Mark Zuckerberg created Facebook in the wake of his own act of cyberbullying, Facemash. Although there has yet to be any federal law sanctioning turpid behavior via the Internet, a number of state legislatures have begun developing legislation to that effect.
The most common trend among the statutes created as a result of cyberbullying is that they are directly related to relationships between fellow students in high school or middle school. Forty-nine states have created statutes that require schools to either incorporate policies that punish students who take part in cyberbullying or create investigative procedures if faculty or staff get wind of any such activity. The only state that has not created a schoolyard cyber-bully statute is Montana, who instead has incorporated a criminal statute that prohibits harassment via electronic means. However, only ten states and the District of Columbia hold students accountable for activity they take part in during their time off campus. Furthermore, only twelve states other than Montana have statutes that criminally punish cyberbullying, and all but one of these classify the crime as a Class A or B misdemeanor.
Oregon’s cyberbullying statute came into effect this last year on the first of July and is procedural in nature; it requires “each school district [to] adopt a policy prohibiting harassment, intimidation or bullying, and . . . cyberbullying.” It also calls for school employees to report these types of acts and school districts to incorporate educational programs that aim to prevent this type of activity. The state legislature justifies the statute by declaring “harassment, intimidation or bullying and cyberbullying, . . . is conduct that disrupts a student’s ability to learn and a school’s ability to educate its students in a safe environment.” In many ways, Oregon’s statute is illustrative of the most common type of statute that has been passed in almost every state to remedy cyberbullying problems.
The only state where cyberbullying is potentially a felony offense is Missouri. The Missouri legislature passed its statute in the aftermath of a horrific and tragic incident in 2006. Megan Meier was a 13 year-old girl who had a friendship that dissolved with a neighborhood girl. Evidently, in the process of becoming foes, Megan called her former friend a lesbian. The offended mother of the girl down the street, Lori Drew, decided to take matters into her own hands. Drew proceeded to create a fake MySpace account where she portrayed an attractive high school aged boy who took interest in Megan. After the building the relationship up over a period of time, Drew took it upon herself to end the relationship in a tormenting fashion. The last message sent to Megan from the fake boy’s profile essentially said that the world would be a better place without her. Megan attempted suicide and died in a hospital the following day. Because of Lori Drew, cyber harassment is a felony in Missouri when committed by a repeat offender or by a person over the age of 21 upon a person younger than 17.
As it is, there are currently three types of law that punish social behavior between persons on the Internet. One are the above school cyberbullying statutes. The other two, cyberstalking and cyber-harassment, are really no different than their non-cyber counterparts; they prohibit using the Internet as a means for this type of behavior. However, the Manti Te’o story presents a situation that lawmakers have yet to consider: cyber-manipulation.
Although Te’o was ultimately not the victim of a crime, his story demonstrates how any person may be vulnerable to being duped by another over the Internet. Te’o’s problems never progressed to the point where he was actually swindled, but the plight of his invisible girlfriend undoubtedly took an emotional toll on him. There was even a time when Michael Scott was fooled into donating to an African Prince’s ponzi scheme. Adults can be, and are, tricked and manipulated via the Internet on a daily basis.
Back to Megan Meier. What eventually happened to the mother was that she was charged under the federal Computer Fraud and Abuse Act (CFAA). Congress passed the CFAA in 1984 as a protection against the burgeoning trade of computer hacking. Particularly, the legislation was meant to punish those that were drawing from the bank accounts of others without their permission. Drew was charged with multiple felony counts of unauthorized use of the MySpace account for furtherance of a tortious act. In MySpace’s quick-click user agreement, the terms of service prohibit a number of actions including threatening or obscene language, tortious behavior, and use of another person’s photograph without their consent. The felony counts were later reduced to misdemeanors, and after being convicted in a jury trial, Drew was acquitted upon appeal. The court held that finding Drew criminally liable for consciously violating the user agreement would be contrary to the void for vagueness doctrine.
In a more recent case, United States v. Nosal, the Court of Appeals for the Ninth Circuit distanced itself from the notion that one can be held criminally culpable under the CFAA if he or she does not strictly adhere to a terms of service agreement in a social media setting. The court rejected the district court decision’s broad interpretation of the CFAA, because reading the statute in that manner would have implications on a much broader group of citizens than Congress originally intended in 1984:
“If Congress meant to expand the scope of criminal liability to everyone who uses a computer in violation of computer use restrictions—which may well include everyone who uses a computer—we would expect it to use language better suited to that purpose. Under the presumption that Congress acts interstitially, we construe a statute as displacing a substantial portion of the common law only where Congress has clearly indicated its intent to do so.”
In its decision, the court emphasized that the statute was primarily created to protect users against hacking, and it encouraged Congress to construct statutes that explicitly create liability for computer misappropriation if it deemed that was necessary.
It is likely that, as technology continues to develop, and the virtual world becomes more closely linked with the physical, that laws concerning online conduct will become more expansive. However, for the time being, it is apparent that the government is going to take a hands-off approach to regulating people’s private interactions on the Internet. So, make use of this wonderful tool that will probably go down in history as one of Al Gore’s top three most impressive inventions, but do so with responsibility and vigilance. Good day gentlemen, but until that day comes, keep your ear to the grindstone.