Criminal Justice Section
Criminal Justice Magazine
Volume 16, Issue 1
Chair's Report to Members
By Ralph C. Martin II
Stalkers Lurk in Web of the Internet
Although the role of women as defendants in the criminal justice system deserves the attention it is now receiving, lawyers and judges should not lose sight of the primary role that women have traditionally played in the system-that of victim. The same knowledge and technology that offer new opportunities to identify, deter, and assist female felons also provide a new method of conducting an age-old crime: stalking.
The U.S. Department of Justice estimates that one in 12 women nationwide has been or will be criminally harassed or stalked at some time in her life. Often, the stalker's conduct escalates; direct threats of violence turn into violence itself. The advent of the computer age has given stalkers a new entré for meeting and pursuing victims. This technology often cloaks the offender in anonymity while his threats are conveyed through the computer screen. It has also raised new obstacles to identifying the stalkers and protecting their victims.
Cyberstalking is a catchphrase that encompasses a host of electronic harassments, including e-mailing harassing or threatening messages; posting harassing information or photographs on web bulletin boards; and usurping a victim's identity and soliciting responses directly to the victim's true address. These crimes can be done across state lines and, in many cases, in virtual anonymity. A Missouri man electronically posed as a Massachusetts high school student and entered chat rooms using the screen names "Ilove2RapeGirls" and "Iwant2RapeYurKid." He then directed students to websites depicting child and adult pornography. In California, a man posted his ex-wife's personal information on a variety of message boards, claiming that she was interested in rough sex. This posting caused a deluge of harassing phone calls by third persons to the unsuspecting victim.
The national (and international) reach and the secrecy of the web have added to the obstacles faced by police and prosecutors in identifying suspects and building cases against them. Investigators often find that the Internet service provider (ISP) of the target of their investigation is an out-of-state company, even if the suspect is himself a state resident. The process of gathering information from such ISPs is cumbersome and uneven. The federal Electronic Communications Privacy Act provides that grand jury subpoenas can be used to acquire certain types of subscriber information and that transactional and content information may be discovered through the issuance of administrative orders or search warrants. However, in an interjurisdictional case, the ISP may not be required to comply with an order or warrant originating from another state. Discovering the identity of the stalker may, therefore, depend on the auspices of local enforcement offices and the volunteerism of the ISPs, which retain critical information for relatively short periods of time. Smaller companies may not keep it at all; at least one ISP in California advises that it does not even collect identifying information.
State legislatures need to recognize the gaps that exist in the ability of police and prosecutors to protect women from electronic stalking. Although many alert state legislatures have recognized the vast changes in stalking since California enacted the first stalking legislation little more than a decade ago, states should enact laws that recognize reciprocity in the treatment of out-of-state subpoenas and search warrants for electronic information. This reciprocity would eliminate wasted time and resources of local authorities and speed the apprehension of offenders. Finally, the Department of Justice and the National Association of Attorneys General should develop standards for the retention of data by ISPs that balance the recognized privacy interests of the lawful web user with the need to detect cyberstalkers and protect their victims.
Ralph C. Martin II of Boston, Massachusetts, is the district attorney for Suffolk County and chair of the Criminal Justice Section.