Emily Jessep
Intellectual Property Crimes
Professors Dreyfuss and First
November 15, 2016
INCOMPATIBLE: The Computer Fraud and Abuse Act (CFAA) and Cyberbullying
I. Introduction
The Computer Fraud and Abuse Act (CFAA) does not cover cyberbullying done via social networking websites and should not be used to prosecute it. Application of the CFAA to cyberbullying prosecutions is inconsistent with the intended scope of the statute and the existing interpretations of its provisions. Practically speaking, nothing in the history of the CFAA suggests that Congress envisioned a cyberbullying prosecution under the statute. The CFAA itself was developed in response to the emerging problems of cybercrime. Mail and wire fraud statutes could not adequately deal with the issue. This shows that once technology develops, the legislature and laws must develop with it.
Constitutionally, the CFAA fails as a tool to prosecute cyberbullying because, when applied to that conduct, the statute is void for vagueness. First, the statute does not place an ordinary person on notice that their conduct is illegal. Second, the statute does not give minimal objective criteria to assist law enforcement agencies in its application.
Part II of this paper will discuss the cultural and legal definitions of cyberbullying and briefly touch upon why it has become a pervasive problem. Part III of this paper will focus on the evolution of the CFAA, its legislative history, and how courts are applying
The Center presented the officials with a made-up scenario in which a student, using the web, threatened to inflict bodily harm on another student. On a scale of one to ten, one meaning no law enforcement role was required and ten requiring a “significant” role, the respondents rated the situation a 9.1. This was the scenario that drew the strongest approval of police intervention (Patchin). Interestingly, one of Rebecca Sedwick’s tormentors told her to die via a Facebook post (Slifer, Fla. Girls). In such a case, the Cyberbullying Research Center instructed law enforcement officials to discuss publicly the consequences of cyberbullying for education and deterrence purposes (Patchin). Obviously, talking things over cannot prevent everything, but it increases awareness in school administrators and parents. The Center also asserted officers should “discipline students for conduct outside of school if it infringes on the rights of other students or causes material disruptions to the school’s learning environment” (Patchin). Ultimately, the Center left interpretations of cyberbullying incidents and the required responses to the officers themselves. In fact, the Center more clearly defines law enforcement’s role in cyberbullying cases in its general statement found on its homepage. The document says officials should
“...1 in 3 teens [have] admitted to being a victim of cyberbullying…” says child psychologist, Eden Foster, in reference to a survey, talked about in “The Dangers of Cyberbullying” by Brett Warke, that shows the absolute significance of cyberbullying in this day and age. Cyberbullying on social media is everywhere and it’s about time that someone took some action against it, and, in this case, taking legal action via prosecution may be the best way to go. Let it not be said that cyberbullying and bullying are different, infact, the only difference is the platform they take place on. Cyberbullying is done with the same malicious intent as face-to-face bullying is done with: the intent to hurt a victim in a psychological or physical way- showing
dealing with cyberbullying and the internet; therefore, it must rely on Case Law from before the
Students, parents, and teachers everywhere are being affected by cyberbullying and it is getting worse every day. With technology advancing as fast as it is, everything is starting to revolve around the internet even bullying. Cyberbullying is a problem especially in schools. As the rate of cyberbullying in schools increases, concerned citizens are raising the question: should students be punished for what they say online outside of school? While some people may say limiting students’ freedom of speech online is the best way to stop cyberbullying, the reality is limiting a students’ freedom of speech online is an unacceptable idea because it goes against the First Amendment, and, in truth, it would never get rid of the problem.
Cyberbullying is defined as, ¨...bullying that takes place using electronic technology¨ by stopbullying.gov. Recently, schools have been taking actions to punish students for what they do or say online. There have been many debates and trails to figure out whether or not schools should have the power to limit and punish students’ speech online. The Supreme Court ruled that if online speech is disruptive, schools can punish students. School districts should not have the power to limit online speech because online speech does not affect most students and teachers, is not very disruptive, and free speech is a precious right.
Did you know that nearly 1 in 3 teens have admitted to being a victim of cyberbullying? That’s an absurdly large number of teens! But what really is cyberbullying anyway? Well, the Cyberbullying Research Center defines it as “willful and repeated harm inflicted through the use of computers, cell phones, and other electronic devices”. Congresswomen Linda Sanchez is currently sponsoring a bill that would make bullying through an electronic means a federal crime and I wholeheartedly support it! Individuals should definitely be prosecuted for statements made on social media.
The first amendment of the United States Constitution is the right of free speech. So, should people get prosecuted for cyberbullying, even though it violates the first amendment? Although cyberbullying is wrong it shouldn’t be charged as a federal crime because it is not physically hurting someone it is emotionally hurting them.
It is a fact that laws are struggling to keep up with the new forms of cyberbullying that are introduced with new technologies. It has only in the past decade that such issues have been addressed. For such a long time the broad spectrum of cyberbullying has been the main difficulty in defining what it is and where it fits in Australia’s criminal framework.
Some people believe that the internet is “designed for opinions, rants, and invective” (Source C). They use that excuse to justify their actions whether their comments are friendly or not. In another case, more than 50 students protest a principal’s decision to suspend a student for cyberbullying. The students that did participate in the sit-in expressed that the student accused of cyberbullying was “exerting his rights to post what he pleases” (Source B). These accounts prove that the bullies know what they are doing is wrong and are aware of the potential outcome of their words. When students are accused of cyberbullying another person, they often find an excuse for what they did; the First Amendment of the Constitution. However, if these adolescents felt as if their comments were not wrong in any way, they would not bother to look for an excuse when being
Furthermore, prosecuting individuals for statements made on the internet would squander taxpayers’ money. As “The Dangers of Cyber bullying” noted, “Congresswoman Linda Sanchez is sponsoring the Megan Meier Cyber Bullying Prevention Act.” Although some may say that financing the court system for the prosecution of “social media bullies” is necessary, it is proven that will also waste money and time. Surely, individuals should not be penalized for statements made on the internet.
Author Danielle Keats Citron’s article “Free Speech Does Not Protect Cyber harassment” mainly addresses it as a social weapon of judgement aimed at the intended person out of hate and cruelty with disregard for the pain they cause. She suggests more parental involvement and action towards teens who engage in this as well as specific laws
Another reason why lawmakers should not prosecute cyber bullies is because parents of victims are partly at fault. Adults allow exposure of their young on the Internet, making it easier for the jobs of cyberbullies. The Ophelia Project created a fact sheet that states, “20% of youth ages 11-18 have been a victim of cyberbullying.” They would not have been a victim in the first if parents, or any adults, had not veiled their children to the vast resource of Internet at early ages. The article further went on to say that a little less than 50% of young people (ages 14-24) reported that they see people being mean to each other on social networking sites. Once again, parents/guardians should have regulated their kids’ online activity.
Adding cyberbullying to the criminal code is viewed in two very distinct ways. These ways are exhibited through Source one and Source two. Source one makes very weak points when stating the reasons/benefits that come with adding cyberbullying to the criminal code. Source two expresses a much better way of managing the overwhelming factors of cyberbullying. People should come up with better ways of handling such a problem. Including this in the criminal
‘Sticks and stones may break my bones, but words will never hurt me’ (The Christian Recorder). This is the infamous saying that many have heard since they were young. With vastly growing technology today, face to face bullying is being replaced with what is known as ‘cyberbullying’. Cyberbullying is defined as, “an aggressive intentional act carried out by a group or individual using electronic forms of contact repeatedly and over against a victim who cannot easily defend him or herself” (WebMD). It can take place using cell phones, computers, tablets, social media sites, text messaging, and/or chat rooms. Cyberbullying has become a growing awareness nationwide, prompting lawmakers to act and propose new laws making cyberbullying a
Cyberbullying is an everyday situation for teenagers around the world. Many teenagers suffer from bullies that are treating them badly and differently than other people. Individuals should be prosecuted for statements made on social media because of the impact that it has on the victim. The cyberbully should be prosecuted because of how the victim reacts to the situation, how the bully harrasses them, and how it spreads around the internet.