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>> Criminal Defense >> Should MySpace, Orkut and other online communities be held legally responsible for online domestic violence crimes committed by their users?


For every boon there is always a downside-such is the case with the Internet, which has become not only the information highway, but also a playground for individuals who seek to wreak havoc on others. As San Diego criminal defense attorneys are quickly learning, as useful and entertaining as the Internet can be, a lot of information about Internet users resides online and an enterprising criminal knows where and how to find it.

Although MySpace.com recently eclipsed more traditional Web sites to become one of the Top 10 Internet destinations, several widely publicized incidents of cyber stalking have also raised concerns about user safety. In addition, the discussion has now turned to questioning the responsibility of the management of these online communities when a domestic crime is committed by their members. San Diego criminal defense attorneys are aware that chat rooms and online communities are not the only electronic means used for cyber stalking; E-mail, text and instant messaging are also being used to harass victims.

MySpace.com has responded proactively to these incidents by bringing a child safety expert on board. In addition, two entrepreneurs who created code to track the relationship status of MySpace.com users face legal action, the social networking website's lawyers have warned. The site SingleStat.us was active for only 10 days before a cease-and-desist letter from MySpace.com caused its creator, David Weekly, to shut down the site. SingleStat charged a small fee to be notified by email when the status of a MySpace.com user changed, from 'in a relationship' to 'single', for example.

Another website with similar functions was also shut down after a warning from MySpace.com. Jared Chandler, who started DatingAnyone.com in April, said MySpace.com further requested that he not release the source code for the project. MySpace.com bared its teeth in Chandler's letter, writing that the site violated California laws against hacking and federal trademark laws.

San Diego criminal defense attorneys have seen how individuals who engage in creating websites that encourage cyber stalking take the position that they should be free to use information in the public domain. But violating the user policy of a company is another story. As many a San Diego criminal defense attorney can attest, the origins of domestic violence scenarios can be as varied as the individuals who are mounting the criminal defense, however, the introduction of Internet with its many online communities has added a new dynamic to this situation.

A Chicago criminal defense attorney follows these guidelines from the Illinois Criminal Code:

(a) A person commits cyber stalking when he or she, knowingly and without lawful justification, on at least 2 separate occasions, harasses another person through the use of electronic communication and:

(1) at any time transmits a threat of immediate or future bodily harm, sexual assault, confinement, or restraint and the threat is directed towards that person or a family member of that person, or

(2) places that person or a family member of that person in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement, or restraint.

(b) As used in this Section:

"Harass" means to engage in a knowing and willful course of conduct directed at a specific person that alarms, torments, or terrorizes that person.

"Electronic communication" means any transfer of signs, signals, writings, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system. "Electronic communication" includes transmissions by a computer through the Internet to another computer.

Chicago defense attorneys know that tiny cameras, cell phones, Internet Web sites, and satellite tracking-today's stalkers have more technology at their disposal than could have been envisioned just a decade ago when most states adopted a version of the 1993 Model Anti-Stalking Code. In response, the Justice Department's National Stalking Resource Center is spearheading a project to update the code to address cyber stalking, with recommendations due this year.

The fact that a person has the ability to interact with others anonymously, is one of the strongest motivations for individuals who are offline domestic offenders, because many are under the false impression that they cannot be caught. This may have been true in the year 1989 before cyber stalking came to the attention of the country's authorities, but in 2005, the cases of cyber stalking rose to 443 from 196 in 2004. In many cases, the person who is being victimized may never have had personal contact with the offender.

Cyber stalking may include the use of Email to harass the victim directly, posting the victim's name, phone number, or Email address in a newsgroup or chat room in order to solicit third person harassment of the victim, preparing of websites designed to harass the victim by displaying personal or pornographic material involving the victim, or the use of the computer to access the victim's personal or financial information, in addition to computer tampering which is also included as a cyber stalking crime. Currently, there are 45 cyber stalking (and related) laws on the books.

The management of the various online communities are also aware of these statistics, however, coming to terms with what they can do to prevent cyber stalking is proving just as difficult. Most agree that they have an obligation to their users to provide sufficient guidelines that clearly define what types of behavior is unacceptable, the consequences of such behavior and the steps that are in place to enforce the policy. Many of these Internet companies are now retaining lawyers to determine how they can protect their interests, as well as protect their members from cyber stalkers.

In addition site usage policies, there are many sites are acknowledging the real danger of online domestic violence, are posting information to educate their users about cyber stalking, along with recommendations such as:

1. Do not offer your real name to strangers
2. Create a gender-neutral username for your e-mail address or chat nickname.
3. Use illogical patterns for your password
4. Never give your password to anyone, especially if someone requests it in an email or instant message.
5. Change your password frequently
6. Instruct children to never give out their real name, address, or phone number online without your permission.
7. Don't give out credit card numbers in a non-secure environment.

If you are being stalked

1. Send a message to the offender. Make it a clear warning that contact is unwanted. Cease all communications and keep a copy of all messages.
2. File a compliant with the offenders' ISP provider
3. Filter messages
4. Get help from WHO@ or NCVC or CyberAngels
5. Establish a paper trail. Document. Document. Document.
6. File an harassment report at the police department
7. Save all messages written and recorded
8. Keep all copies out of the house (Stalkers are known to break in and steal things.)
9. If you receive email with a very specific threat, contact your local law enforcement department. A cyber stalker could step out into the physical world and lure you for a first meeting; vandalize your home, workplace or vehicle; send threatening or obscene mail; and make abusive and excessive phone calls.

The growing amount of evidence of the damage of using the Internet as an instrument to harass, threaten and abuse, is the reason why courts have decided to include cyber stalking in the new definition of domestic violence. Cyber stalkers may claim the First Amendment as a criminal defense to any state law, but the First Amendment does not protect true threats. And the United States Supreme Court realized that true threats might be criminalized without violating the First Amendment. Chicago criminal defense attorneys have reported seeing cases involving cyber aspects in the following areas: violations of orders of protection, harassment, stalking, or threatening and intimidating behavior.

In addition to Chicago criminal defense cases, this year a Washington Park man who pleaded guilty in his criminal defense trial of stalking the St. Louis television news anchor and reporter Randi Naughton, not by approaching or threatening her in person but by harassing her through e-mails and on Web sites. With the guilty plea in circuit court and a sentence of 30 months of probation, Rickey E. Lamming, 50, became the first person in St. Clair County to be convicted under Illinois' cyber stalking law.

Austin criminal defense attorneys have handled hundreds of cases for domestic violence against females and children, now there are several Texas criminal defense attorneys who are now reporting the number of males filing charges of the violation of this law steadily increasing. Victims in cyber stalking cases suffer not only physical and emotional harm, but also may suffer financial hardship. A Houston criminal defense attorney reviewed a case where a Gay masseur reported being stalked by phone, mail and Internet for over a year. The masseur, who asked that his name not be used, has been harassed by a stalker who places his name on mailing lists, orders items in his name and vilifies him in chat rooms on the Web. Although the statutes that would be used in a Houston criminal defense trial is similar in structure as other states, again there are multiple problems to prosecuting cyber stalking cases.

An Austin criminal defense attorney was one of many who reviewed a quantitative study which was sponsored by the Office of the Texas Attorney General for the Texas Council on Family Violence by Saurage Research, Inc. in 2003. Texas criminal defense attorneys know for a fact what the study revealed: that despite the fact that domestic violence is a crime, the prevalence, understanding and perception of the consequences, is sorely lacking. 74 percent of all Texans indicate that they, a family member and/or a friend or coworker have experienced some form of domestic violence (physical, sexual or verbal) in their lifetime and 49 percent of all Texans report that they have either personally been severely abused or report that a family member has been a victim of domestic violence. A Texas criminal defense trial for domestic violence offenders deals with face to face encounters, but Houston criminal defense attorneys and their Austin criminal defense attorneys colleagues need more information on how cyber stalking and traditional domestic violence intersect.

In 2002, a Chicago criminal defense was mounted in one of the state's first cyber stalking trials. Angela Moubray, a Virginia resident was harassed and threatened for over two years before here case came to trial. Despite the prevalence of such incidents, arrests are rare. The trial offered a window into how difficult such cases are to prosecute, but also sent the signal that authorities had begun to take the crime seriously.

Chicago criminal defense trials for domestic violence offenders in the past, have seen these repeat offenders turn into cases of cyber stalking. The increase in the amount of cases has proven that this type of harassment is just a new take on old threat. While the Internet is the weapon of choice, it's far from harmless. Chicago criminal defense attorneys are also aware that in the same way "traditional" stalking can escalate to physical threats - including murder and suicide - so can their cyber forms.

A case that proves the connection can be seen in Resmburg v. Docusearch, where the New Hampshire Supreme Court has held that information brokers and private investigators can be liable for the harms caused by selling personal information. In the case, a young woman was murdered by a stalker who obtained her personal information from information brokers and private investigators.

While Texas criminal defense attorneys along with others throughout the United States are grappling with several new challenges that they represent for the court. Cases which are tried before a jury will require the addition of hi-tech voir dire questions to the standard array of questions. Cyber stalking cases also present several different types of evidentiary issues in keeping with the criminal defense of the case. As with other types of stalking and harassment cases, a series of circumstantial evidence is used to present domestic violence cases to the jury or the court.

Online communities have been held responsible to provide evidence of their connection to the case, such as E-mail logs may be presented to demonstrate the E-mail traffic to the victim's computer, membership information and copies of Email messages they have sent to the defendant. Such message will usually have the URL at the top of the message. The numbers on the top are significant as they are able to tie the message to the computer, which has the account that sent the message. Information regarding the server or E-mail account used by the defendant may be presented. Testimony from AOL, Yahoo, MSN, or other Internet Service Provider's (ISP) representatives may be presented with regards to the defendant's Email, use of web sites, or use of chat rooms.

Additionally, screen captures may be presented. These are actual segments of the harassment that was occurring in a chat room or web site, which have been captured/copied by computer software. Such captures may be presented via the use of a computer in court. Testimony which may be heard in these types of cases includes testimony from not only the victim, but also the forensic examiner/analyst who reviewed the computer information, the Internet Service Provider (ISP) Custodian, and the investigator.

In addition to the standard options available to judges in sentencing defendants, criminal defense attorneys are finding that judges are aware of the need to place more stringent controls upon the defendant in cyber stalking cases. Such controls could include a bar to computer ownership and/or use,
prohibitions for using the Internet, E-mail, or chat rooms, and bans of other forms of electronic communications such as E-mail via a cellular phone. Although this may not completely solve the problem, it may provide the victim some amount of security.

While criminal defense attorneys and the courts press for more comprehensive laws on the federal level, the states are taking notice of the statistics related to online domestic violence. Determining the level of responsibility for those who operate online communities, information services and those who commit the online crime, while protecting the rights of each party, is a complicated issue. The National Association of Criminal Defense Lawyers (NACDL) is a professional bar association that works to ensure justice and due process for people accused of crime or other misconduct. Their web site has resources on the topics of domestic violence, cyber stalking, criminal justice news and legislation, information on programs and projects in the field, descriptions of NACDL publications and upcoming events, and links to online legal research. (Web site: www.criminaljustice.org).