Cyberstalking

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Furious that her ex-boyfriend slept with her best friend, defendant puts up a post on Facebook falsely stating that boyfriend enjoys intimate relations with inbred dogs (actually, the phrase “enjoys intimate relations” and the term “dogs” are mine; defendant herself employed far more colorful language). Since boyfriend and defendant are “friends” on Facebook, defendant knows that boyfriend will see the post. Did defendant commit a crime?

In a post here, I wrote about cyberbullying, a crime enacted in 2009. A related offense but one that generates far more charges annually (over 1,200 charges in 2010) is cyberstalking. Because I get a fair number of questions about cyberstalking, particularly with regard to postings on social media sites such as girlfriend’s above, I’ll use this post to explain the crime.

The cyberstalking statute, G.S. 14-196.3, actually proscribes four offenses, all of which are Class 2 misdemeanors. G.S. 14-196.3(d).

Using Electronic Email or Electronic Communication To Threaten or Extort

The first cyberstalking offense involves using electronic email or electronic communication to threaten or extort. A person guilty of this offense uses in electronic mail or electronic communication words or language threatening to inflict bodily harm to any person, threatening physical injury to the property of another, or for the purpose of extorting money or other things of value from any person. G.S. 14-196.3(b)(1). If there is no threat or purpose to extort, this offense doesn’t apply. Note that as to the threat, statute does not define the terms “bodily harm” or “physical injury.”

For this and all cyberstalking offenses:

  • The term “electronic mail” means the transmission of information or communication by the use of the Internet, a computer, a facsimile machine, a pager, a cellular telephone, a video recorder, or other electronic means sent to a person identified by a unique address or address number and received by that person. G.S. 14-196.3(a)(2).
  • The term “electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature, transmitted in whole or in part by a wire, radio, computer, electromagnetic, photoelectric, or photo‑optical system. G.S. 14-196.3(a)(1).
  • The statute provides that the offenses don’t to apply to any peaceable, nonviolent, or nonthreatening activity intended to express political views or to provide lawful information to others. G.S. 14-196.3(e). Also, the offenses may not be construed to impair any constitutionally protected activity, including speech, protest, or assembly. Id.
  • The offenses are considered to have been committed where the electronic mail or electronic communication was originally sent, originally received in North Carolina, or first viewed by a person in North Carolina. G.S. 14-196.3(c).

Repeated Use of Electronic Mail or Communication To Harass, Etc.

The second cybertalking offense involves repeated use of electronic mail or communication to harass, etc. A person guilty of this offense electronically mails or electronically communicates to another, repeatedly and for the purpose of abusing, annoying, threatening, terrifying, harassing, or embarrassing any person. G.S. 14-196.3(b)(2). Conversation need not occur. Id. This offense only applies when there is repeated conduct. Thus, if it’s one message or one posting, this offense hasn’t occurred. The statute does not define the terms abusing, annoying, threatening, terrifying, harassing, or embarrassing. However, the stalking statute defines the terms “harasses” and “harassment” as knowing conduct directed at a specific person that torments, terrorizes, or terrifies that person and that serves no legitimate purpose. G.S. 14-277.3A(b)(2). Apparently, the person the defendant seeks to abuse, annoy, etc., need not be the person to whom the defendant directs the electronic mail or communication. See G.S. 14-196.3(b)(2) (to annoy, abuse, etc., “any person”).

Using Electronic Mail or Communication To Send a Specified False Statement

The third prohibited offense is using electronic mail or communication to send a false statement. A person guilty of this offense electronically mails to or electronically communicates with another and knowingly makes a false statement concerning death, injury, illness, disfigurement, or indecent or criminal conduct of the person electronically mailed or any member of the person’s family or household with the intent to abuse, annoy, threaten, terrify, harass, or embarrass. G.S. 14-196.3(b)(3). Note that any false statement won’t do it—the statement has to concern death, injury, illness, disfigurement, or indecent or criminal conduct. As with the previous offense, the statute does not define the terms abuse, annoy, threaten, terrify, harass, or embarrass. But as noted, the stalking statute provides guidance on the meaning of the terms “harass” and “harassment.” It’s not clear what falls within the scope of the statutory term “indecent conduct.”

Permitting Cyberstalking

Finally, the statute makes it a crime to permit cyberstalking. A person guilty of this offense knowingly permits an electronic communication device under his or her control to be used for a purpose prohibited by the three offenses listed above. G.S. 14-196.3(b)(4). This offense would apply, for example, if I knowingly let you use my smart phone to send threatening text messages to the victim.

* * *

So what about defendant’s post? Since she didn’t threaten or extort, the first offense doesn’t apply. And since she only made one post, the second doesn’t apply either. That brings us to offense three: using electronic mail or communication to send a false statement. Defendant’s Facebook posting probably qualifies as an electronic communication within the meaning of the statute. Given her anger over boyfriend’s conduct, we can probably infer the improper purpose. That leaves the question of whether the communication pertained death, injury, illness, disfigurement, or indecent or criminal conduct. With regard to this posting, my caller was wondering whether an allegation that someone is having sex with dogs constitutes “indecent conduct.” As noted above, the statute doesn’t define that term. But I didn’t get hung up on that issue because the post clearly concerns criminal conduct. Having sex with animals constitutes crime against nature, a Class I felony. Since all of the elements are satisfied, I think there is probable cause to charge. Let me know if you disagree.

22 comments on “Cyberstalking

  1. Jessie a slow week?

  2. As you said, this post definitely implies that the boyfriend was engaged in criminal activity, and therefore counts as the third offense.

    People should really be careful when they write those things online. I guess the girlfriend will learn the hard way this time…

    Nadav

  3. Thanks,

  4. The brief facts you provide illustrate the importance in this type of analysis of knowing what was actually said or written. I’m not asking that you share the actual words, but it does make a difference.
    I assume from your conclusion that the defendant used language which made clear that she was accusing her ex-boyfriend of having “relations” with a canine.
    Of course, if she used such colorful language in its broader but still wel-recognized sense to describe her until-recently-best friend, in the language and definitions from Merriam-Webster, as “a lewd or immoral woman” (which apparently was the truth), or “a malicious, spiteful, or overbearing woman” (which may have also been true), her Facebook posting might well accuse the boyfriend and ex-best friend of a crime under NCGS 14-184 (fornication is still on the books), which they might actually be committing. In that case, her comment might have been ill-advised, but it would not be cyberstalking under 14-196.3(b)(3).
    I suppose we would still have to deal with the accusation that the ex-best friend’s parents were within a prohibited degree or relationship at the time of her conception….

    • Sorry for the anonymity but I have a case open and pending and would rather the plaintiff not know I’m bothered in the least by this action against me (long history with this person.) By the definitions of cyberstalking in NCGS 14-196.3, I’m not even sure that I’m guilty of this ridiculous charge. First of all, this charge was filed against me the exact same day that my brother filed a DVO against her so it is completely a case of retaliation. There was a very hostile and nasty phone conversation between the two of us where I placed the call for a peaceful reason and she began to slander me and . . . . once again . . . . told me that she was going to kill herself. I’m so tired of hearing that!! After another brief phone call that escalated even more, I ended up sending her 3 nasty text messages (3 because it was too long for 1.) They were sent back to back and contained no threats and only true statements surrounding the situation between her and my brother and the ending of their marriage. The most threatening thing I said was that I wish she would go ahead and kill herself and get it over with and let us all rest . . . . or something to that effect. I never threatened to cause her harm myself . . . . only the harm to herself that she has repeatedly threatened for the past year and a half. There is evidence where she threatened to kill herself in the presence of police officers . . . . on record and right here in my hands. After these text messages (all 3 sent within 2 minutes time) I have not had any contact with this person and no intention of contacting her. I admit the texts were immature and I let my anger get the better of me but the phone conversation (which is totally hearsay at this point, I understand) was violent in nature toward me. My question to this forum is . . . . . under the statute and as it reads, am I really guilty of cyberstalking? I have a spotless record and have never been served for any action other than divorce in my entire life. I would hate for this to hit my record, but I understand that I let my emotions get the better of me. I agree that the texts were wrong, but are the really worthy of a class 2 misdeameanor and a $500 fine? If only you could see the record of the plaintiff in this case, you would understand!!! She is hardly spotless! But 2 wrongs do not make a right.

      • I just received a criminal summons for cyberstalking from my wife, we separated four months ago. I have a few questions, do I have a right to get her text messages to me for the last year to show that I am the real victim here. Two there are two children involved my son 7 and my daughter 10. Three having these texts will put the context in proper perspective? Four she is involved in illegal behavior, porn, naked pictures sent to men while we were still together. Can any of this be brought up? I feel if I can get this information this case will be looked at in a different light. How would I go about getting a supena for this information.? What is the maximum penalty for this offense

        • This law is so conspicuously unconstitutional any lawyer representing a victim charged under this law ought to be sued for malpractice if (s)he does not challenge it. Decreeing that no person has a right not to be annoyed, the highest court of New York has found a strikingly similar law unconstitutional TWICE in two separate cases, People vs. Golb and People vs. MarwanM.

          Our cyberstalking and cyberbullying laws and their sibling statutes have contaminated jurisprudence and trampled on the Bill of Rights all over the USA. Does anybody ever read the Constitution any more?

          As the Roman philosopher Tacitus warned thousands of years ago, the more laws a government passes the more it wallows in corruption. And that includes the grimy little banana republic of North Carolina.

      • What ever happened to your case?

      • BB….. Lots of holes in story..

  5. How much and how often is communication required to qualify as cyperstalking?

    I had a case several years ago where my male defendant sent to a female “victim” five emails over seven months. One was an apology. Another message asked if she would be upset if he attended a public performance at her university. The remaining ones were attempts to get a relationship going as friends, which he hoped might grow into something bigger. He was about 10 years older that she was. She rebuffed and ignored all of the emails. At her reuest, university officials told him several times to stop sending her messages. The campus cops brought the charges.

    Wake District Court found him guilty of cyberstalking. My position was this was not enough nor often enough to be stalking. He didn’t want to go through another trial. I appealed and a PJC was negotiated.

  6. Thank you for the information. One of the units I supervise is the School Resource Officers (SROs). Facebook postings combined with middle and high school students results in improper or inaccurate information sharing.

    FaceBook has also become the hub for slandering and cyber-bullying. Would you be able to do another post regarding cyber-bullying through social media? I am finding too many officers are merely advising the parents to delete the account but with little to no follow up. A common reply is the officers are not clear on the elements for cyber-stalking nor are the magistrates when officers try to give probable cause.

    Any insight would be most appreciated.

  7. I am a victim in the middle of a case in which the person is charged with 7 counts. 2 counts of cyber-stalking, 2 counts of computer trespass and 3 counts of Harassing Phone Calls. As I am not a lawyer, I can only rely on the advice of the DA. I feel they are in way over their head. First of all, all these counts are a misdemeanor, so no lawyer in the district courts would even take the case. A Superior court attorney pleaded the case in district court, but the Judge wouldn’t rule because she wasn’t verse on computers. So it will be heard again on a different day by a different judge. In the mean time, as a victim I asked for their bond to be revoked because the accused had violated a release order of “no contact”. After much pressure on the DA’s office, I contacted the the SBI, a state senators office and the GSO News & Record, it was finally brought in front of a judge and the judge ruled in our favor. The judge ordered a stiffer release order and again ordered no contact. Now the DA thinks it can make a case for identity fraud because the defendant hacked and took over a facebook account, but the DA says that facebook will not come and testify, if ordered, and NC will not except written affidavits. I feel this might be non testimonial evidence after reading your blog on the Crawford Rule. Again, I am not a lawyer, but I feel the IP report we received from Facebook showing the IP traced back to the defendant’s address, was not made for the purpose of establishing or proving some fact at trial. The report from Facebook is just data retained by them and so should be considered as non-testimonial evidence and not be required to come to court as a witness to be questioned. How do you feel about this. The UNCG police department has given the DA’s office more than sufficient evidence (Google, AT&T, Facebook, Time Warner, AOL and even Emkei have cooperated and all sent reports implicating the defendant and no one else). I have no where else to go, so if you can help it would be greatly appreciated.

  8. A cyberstalking warrant of 7/25/2013 charges that the defendant used words and language in an electronic communication or electronic mail to one M. G. for the purpose of abusing, annoying, threatening, terrifying, harassing, or embarrassing M. G. [by] “making any false statement concerning death, injury, illness, disfigurement, indecent conduct, or _criminal conduct_ of or of any member of their (sic) household, with intent to abuse, annoy, threaten, terrify, harass, or embarrass. (Note that the magistrate underlined “criminal conduct.”)
    The date of the offense is listed as 07/12/2013.
    There is no specification of the particulars of the defendant’s words. Thus, the defendant is unable to recall what he might have uploaded on 7/12. Can this warrant survive a motion to dismiss, pursuant to the requirements of G. S. 15A-924(a) and constitutional due process, for lack of notice to the defendant as to the words he is supposed to have transmitted?

    And secondly, if the words were uttered by one to many, as in an internet public forum like Topix, or on a weblog, and not one-to-one such as in an email or transmission to the “victim’s” facebook account, is this not constitutionally protected communication, especially if the defendant has good reasons to believe that the prosecuting witness committed crimes? It appears the statute is being used to prosecute the tort of libel, wherein truth is a defense. See:
    http://www2.law.ucla.edu/volokh/crimharass.pdf

    What I’m getting at is if 196.3 is not vague and overbroad on its face (although it tries like the dickens to proclaim that it is not), isn’t the application of 196.3 to these facts a violation of due process and the First Amendment rights of the defendant?

  9. I was recently convicted of cyberstalking. I received a ten day active sentence, a 90 day suspended sentence & 24 months supervised probation. Also, I was advised by the judge not to have any contact with the victim or his family members. However, one of my family members sent victim one text message. I was not aware of family member’s action nor did I ask for the message to be sent. Could this possibly violate my probation?

  10. I read from a fairly recent Connecticut survey that North Carolina’s cyberstalking conviction rate was 16%. Of course there are several ways to interpret those statistics, but my own interpretation is that the cyberstalking statute is grossly overbroad and is being misused to prosecute internet publishers who have annoyed someone by publishing legitimate content-based free speech material. I am personally aware of at least two such prosecutions, one already having been dismissed voluntarily by the DA and the other opposed by a fierce defense on constitutional grounds.

    See Professor Eugene Volokh’s article which criticizes the misuse of cyberstalking laws to punish content-based speech in internet forums, i. e., one-to-many conversations as opposed to one-to-one conversations (as in emails).

    Professor A. H. Caplan also has written a superb article published on the net in which he points out the overreaching use of restraining orders to “criminalize” free speech.

  11. Thank you for the information. One of the units I supervise is the School Resource Officers (SROs). Facebook postings combined with middle and high school students results in improper or inaccurate information sharing.

    FaceBook has also become the hub for slandering and cyber-bullying. Would you be able to do another post regarding cyber-bullying through social media? I am finding too many officers are merely advising the parents to delete the account but with little to no follow up. A common reply is the officers are not clear on the elements for cyber-stalking nor are the magistrates when officers try to give probable cause.

    Any insight would be most appreciated.

  12. Here’s my question. My boyfriend’s ex – wife has on several occasions accused me of intercepting his mail and throwing it away. She has even told both of their divorce attorneys that this is why she does mail paperwork to him. These allegations are totally false and unfounded. Isn’t tampering with someone else’s mail a federal offense? If so, is her constant accusations of this apply to the 3rd category? Her latest allegation is that I am now waiting at his house while he’s at work to refuse any packages being sent by carrier.
    She has repeatedly posted things on social media sites about me being the cause of the divorce (having an affair with him) when I didn’t even meet him until after divorce was filed. He didn’t even live in the same state as me when they separated.
    What can I do, if anything, to stop this harassment and embarrassment? Someone PLEASE help me.

  13. 4:54 PM 8/3/2014

    This is my 3rd comment in this thread, the first 2 under my name and “Marty Moloch.” I was arrested and roughed up, then re-arrested, BRUTALIZED, and jailed for failure to appear when my dr’s sent faxes I was unable to attend court, under this fashionably fascist CS BS twice, my DNA seized by force, and even had my mug published in those smudgy little quick-stop newspapers all over NC. But, HARK! Both CS cases were dismissed, 1st time by our corrupt, defeated DA Ron Moore; 2nd time by a judge who tried like hell to keep me from defending myself, after I fired my lawyer who had been gamed by chicanerous court officials to dillydally, delay, and forum-shop in violation of SPEEDY TRIAL, and made to carry water by the DA. So I went on my own pro se! Why, because, just as foremost legal scholars have warned, and the highest court of NY has warned, this statute, and its horde of siblings across the USA, is OVERBROAD. Do any of you people understand or believe in the BofR? And yes, I filed a written motion to dismiss. My lawyer would not file it. If you want to know more, see my blog, buncyblawg.com because I am getting ready to publish docs and details. No one should have to endure this brutality for publishing content-based opinion on the net, no one! I have actually run the gauntlet of 2 CS warrants and 3 frivolous and malicious show-cause orders, every single one of them risking me to jail terms, but dismissed as patent frauds! This is how our officials here in Asheville go to 3rd-world extremes to stifle blawging they don’t like, with a psychopath toady as their ringer and “victim.”
    2 More observations: during the trial the judge repeatedly threatened to jail me for contempt when I objected as he let in grossly objectionable testimony and allowed the prosecuting witness to range around in years of time when the warrant cited the date of offense as July 12, 2014. “On July 12,” means “on or about” July 12, semi-deaf Judge David Fox, contended, so he let her go on the prowl backwards and forwards in time BY YEARS. So much for the defense of alibi, or any other defense, like for example the First Amendment, equal protection, due process of law. “This is not a court of record,” Fox said, (although District Court of Buncombe County *is* a court of record) so calling the hearing “preliminary,” he just let in everything, much of it acerbic criticism of judges (read into the record by the illiterate litigatrix, like Sam Ervin, Ed Clontz, and Julie Kepple, who “served” her not only as her coddling adjudicators but as her lawyers in various adversary proceedings riddled with incompetent testimony. And hearsay. And unidentified and unnumbered documents that I was DENIED to see or to have copies of before, during, or after trial. Thankfully my 2 tiny digital tape recorders picked up a lot of it, despite the 2 ADAs’ frenzied objections and the refusal of Judge Fox to allow me to put one of the 2 recorders near the witness box where all the perjury spewed like “soup” from one of Asheville’s largest underground pipes. I knew the judge would try to choke off my x-exam. They always have. But this time I tossed out the biggest chunk of the P’x’s corruption– her malicious FACEBOOK libel calling me an embezzler, a disbarred lawyer, a computer and telephone hacker, threatener, and other horrid things, just a few minutes after she testified on direct to the question, “Have you ever published anything about Mr. Smith on the internet?” And she quickly answered, “Absolutely not!” So she was caught lying under oath, and the judge had no choice but to acknowledge her “unclean hands” and throw the case out.

    • Sounds like you are well versed in NC cyber stalking laws. I was recently falsely accused 10-1-2014 of cyber stalking in Buncombe County. I can go into further into detail and could use an attorney in this matter. A truly horrifying ordeal having to sit in the Buncombe County Jail processing chained to a bench for 3 hrs and being fingerprinted, a sample of my DNA taken making me feel like I had just been accused of murder or rape. I never once used profane language of threatened bodily harm. I only tried to have person that accused me of this crime to pay monies owed for a 30 day European vacation paid for by my girlfriend and to be repaid a week before accuser and girlfriend were to depart for Milan Italy. Accuser disappeared from the face of the earth and with it being only a week from departure my gf was not given ANY kind of refund. Accuser owes 891.00 for 30 day Global Eurail Pass. 2031.64 in airline and hotel bill. My gf gave me power of attorney in this matter via the US Consulates Office in Milan. I cannot believe the Buncombe County DA even considered this matter for prosecution. What a load of horse shit!!!!

  14. Both North Carolina’s cyberstalking and cyberbullying laws are glaringly unconstitutional. No attorney worth his salt would represent a client without filing motions to dismiss, based on the vagueness and overbreadth of the statutes and their applications.

    If you don’t have a copy of the Bill of Rights there at UNC-CH, let me know and I’ll send you a copy.

    Sheesh.

    • Please forward me a copy in regards to cyber stalking

  15. The warrant I have been talking about with such enthusiasm — “ranting,” as Prof. Volokh called it — and my Motion to Dismiss the Warrant (at the very bottom of the post) may both be found here:

    http://www.buncyblawg.com/2014/02/28/cyberstalking-warrant-no-2/

    The warrant should havew been dismissed as a series of violations of sections of Chapter 15A alone, irrespective of all the Constitutional violations.

    Now I hope I have ranted enough and pledge to quit for a while. A word to the wise is enough.

    And yes, this cyberstalking case is now dismissed, dead and gone forever like the previous cyberstalking case against me. I warned everybody that both of the warrants were malicious prosecution. I wonder why no one listened.

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