Threatening Communications and interstate stalking

1. Threatening Communications and interstate stalking Nicole McMillan, Matt Schuling, and Austin Stein February 23, 2010

2. Threatening Communications

3. Bunny Video • The owner of a costume shop went to the public library and had harassing calls sent to a competing business owner. She asked a news crew to come to her place of business so she could tell her side of the story. • http://www.youtube.com/watch?v=hiYyaWC649A

4. 18 U.S.C. § 875Interstate Communications (a) Whoever transmits in interstate or foreign commerce any communication containing any demand or request for a ransom or reward for the release of any kidnapped person, shall be fined under this title or imprisoned not more than twenty years, or both. (b) Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than twenty years, or both. (c) Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both. (d) Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.

5. In Other Words… You can’t communicate or transmit any of the following in interstate commerce: • A ransom demand • A threat to kidnap or injure someone with intent to extort money or anything else • Any threat to kidnap or injure someone (without monetary goal, lighter sentence) • Any threat to injure someone’s property or reputation with intent to extort money or anything else

6. Purpose of the Statute • Prohibit using interstate communications for extortion purposes. • Not just to protect people, also protect against the threat itself. The statute is about the threat, not necessarily the crime that is threatened. • Protect people, property, and reputation.

7. Jurisdictional Element -United States v. KammersellNo instant message bomb threats Boyfriend sent a bomb threat to his girlfriend’s work via instant message. The message went from his home in Utah to the AOL hub in Virginia, then back to his girlfriend’s office in Utah. The message satisfied the jurisdictional element of § 875(c) because threat was transmitted across state lines, and there was no requirement that anyone in another state actually see it. The fact that the sender and the recipient were in the same state was irrelevant.

8. A Few Practical Considerations The threat must be one that a reasonable person would interpret as an expression of intent to inflict harm and actually cause fear in the recipient. Intent to communicate a threat is required; intent to actually get money is not. Intent to actually carry out the communicated threat is not required.

9. PROBLEM: A “Threat” is Required Conduct intended to harass or annoy someone, absent a specific threat. The Alkhabaz case provides an example of this problem.

10. United States v. Alkhabaz Out-of-state emails and stories posted on a website expressing interest in sexual violence towards women and girls. Posted a story about the torture, rape, and murder of a woman who shared a name with a college classmate. Held: the messages were not threatening communications. The court said no one would have taken these as serious expressions of intent to inflict harm, and they weren’t sent to intimidate anyone.

11. First Amendment Issues & § 875(c) Elements of § 875(c): • Sends message in interstate commerce • Message contains a threat • The threat was a threat to kidnap or injure  But … To not receive protection under the First Amendment the threat must qualify as a “true threat.”

12. True Threats • According to Justice O’Conner: • "True threats are not protected by the First Amendment and encompass those statements when the speaker means to communicate a serious intent to commit an act of unlawful violence to a particular individual or group of individuals; the speaker need not actually intend to carry out the threat.” Virginia v. Black.

13. True Threats • In other words … • Most circuits have held that a true threat is likely unprotected by the First Amendment when a communication is: • (1) reasonably intended to inspire fear in someone, and • (2) the person to whom the threat is communicated would reasonably conclude that the communication was meant to inspire fear of bodily injury in the person who is the object of the threat.

14. True Threats & Alkhabaz • Elements of a true threat according to the Sixth Circuit in Alkhabaz: • A reasonable person would understand the message as a serious intention to inflict bodily harm; • A reasonable person would understand the message as being communicated to effect some change or achieve some goal through intimidation.

15. Interstate Stalking

16. SNL Video • http://www.hulu.com/watch/1420/saturday-night-live-myspace • Lesson: People you meet on social networking sites are not always who they say they are, and they might be creepy stalkers.

17. Stalking Background • In 1990, California was the first state to enact an anti-stalking statute. • Half a million people are victims of stalking every year. 85% of stalking victims are not famous. • 2001 Statistics • LA – 20% of 600 stalking cases involved cyberstalking • NY – 40% of stalking cases involved cyberstalking

18. Purpose • Enacted as part of the Violence Against Women Act (VAWA). • To protect people from stalkers (obviously). • Intent to harm need not materialize before crossing the state line.

19. Statute – 18 U.S.C. § 2261A Whoever-- (1) travels in interstate or foreign commerce or within the special maritime and territorial jurisdiction of the United States, or enters or leaves Indian country, with the intent to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate another person, and in the course of, or as a result of, such travel places that person in reasonable fear of the death of, or serious bodily injury to, or causes substantial emotional distress to that person, a member of the immediate family of that person, or the spouse or intimate partner of that person; or (2) with the intent-- (A) to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate, or cause substantial emotional distress to a person in another State or tribal jurisdiction or within the special maritime and territorial jurisdiction of the United States; or (B) to place a person in another State or tribal jurisdiction, or within the special maritime and territorial jurisdiction of the United States, in reasonable fear of the death of, or serious bodily injury to-- (i) that person; (ii) a member of the immediate family of that person; or (iii) a spouse or intimate partner of that person; uses the mail, any interactive computer service, or any facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress to that person or places that person in reasonable fear of the death of, or serious bodily injury to, any of the persons described in clauses (i) through (iii) of subparagraph (B); shall be punished as provided in § 2261(B) of this title.

20. In Other Words… • You can’t travel or send communications across state lines • with intent to kill, injure, or harass someone. • nor can you place someone under surveillance • with intent to kill injure, harass, intimidate, or cause substantial emotional distress. • Or any of the above that places the person in reasonable fear of death or serious injury to themselves, their family, or their spouse.

21. Cyberstalking

22. Stalking v. Cyberstalking • Cyberstalking can be viewed by anyone in the world. • Cyberstalking can occur from anywhere in the world. • Cyberstalkers can remain anonymous.

23. United States v. Bowker Stalked his favorite newswoman by emailing her, mailing her, calling her, and leaving messages on her answering machine. This went on for over a year. The FBI was involved and was concerned for her safety. The court found Bowker used interstate communications to engage in conduct that caused emotional distress and reasonable fear in the newscaster. He had intent to injure, harass, place under surveillance. The quantity and content of his messages placed her in reasonable fear.

24. Bowker & the Federal Sentencing Guidelines • Bowker was charged under § 2261A(1), which is covered by USSG § 2A6.2 • § 2A6.2. Stalking or Domestic Violence • (a) Base Offense Level: 14 • (b) Specific Offense Characteristic • (1) if the offense involved … “a pattern of activity involving stalking, threatening, harassing, or assaulting the same victim, increase by 2 levels.” Application Notes: “5. If the defendant received an enhancement under subsection (b)(1) … an upward departure may be warranted.”

25. Upward Departures § 5K2.3. Extreme Psychological Injury (Policy Statement) “Psychological injury would be sufficiently severe to warrant [an upward departure] when there is a substantial impairment of the intellectual, psychological, emotional, or behavioral functioning of a victim, when the impairment is likely to be of an extended or continuous duration, and when the impairment manifests itself by physical or psychological symptoms or by changes in behavior patterns.” Bowker’s sentence was later vacated by the Supreme Court because … Under the Sixth Amendment, all USSG sentencing factors must be proved to a jury beyond a reasonable doubt. US v. Booker.

26. Potential Issue • Where a cyberstalker pretends to be the victim and encourages third parties to harass the victim.

27. Cyberstalkers Encouraging Innocent Third Party Harassment In CA, a cyberstalker used the internet to solicit the rape of a woman who had rejected him.

28. More Cyberstalkers • A cyberstalker sent hate e-mail in the victim’s name to groups of satanists, drug users, and pornographers.

29. Still More Cyberstalkers The cyberstalker posted inflammatory comments on the web and sent e-mails in her name to third parties. He also advertised her phone number and address in an alt.sex advertisement for “sadistic interaction.” She sued the cyberstalker, but he was never found liable.

30. Fin • Feel free to ask question and clap loudly