Fist 88781de2e1379e4851ba4473ccd1546ed6d12bc08d9f8dc871fed89845601613 Know Your Rights


Trying to understand what your rights are on the internet and when they’ve been crossed is tricky. There are some federal laws that are meant to protect us but others vary from state to state.

First and foremost, if you feel as though you are in immediate danger, consider calling the police. We understand that involving law enforcement may not be the best option for many, as a growing number of people have reported a lack of sensitivity and responsiveness to issues of online harassment by police. We also understand people have different experiences with law enforcement depending on their personal histories, identities, and communities, so please use your best discretion in any decision to involve police. The upside of police involvement when dealing with online harassment is that once you have made an official complaint, you will begin to create documentation for your case. This documentation will be helpful if the harassment continues or escalates in the future. Of course there are other ways to document harassment that don’t involve law enforcement, such as storing all documentation on a hard drive, or documenting a case on HeartMob.

Ultimately, you know what is best for you, so use your best judgement when deciding what steps you want to take to combat online harassment. Below we will walk you through some key definitions you might need when talking to a lawyer and/or law enforcement, what federal and state laws are there to keep you safe, as well as what to expect if you go to the police. Please keep in mind that this guide is not intended as legal advice. Law in this area is constantly evolving and it is best to contact a lawyer in your state if you want the most up to date information and legal guidance.

We have a comparative policy report [pdf] for how governments across the US, Australia, Canada, and UK are attempting to prevent online harassment.

  1. Preparing a Case
  2. Going to the Police
  3. Going to a Lawyer
  4. Definitions
  5. Laws
  6. More Information
  1. Preparing a Case

    What kinds of documentation are the most helpful/needed?

    It is helpful to document the specific dates and nature of each incident of harassment, as well as the means used to carry them out (in person; via telephone calls or text messages; online, including the specific websites/apps upon which the harassment took place; etc).1 Feel free to ask a friend or HeartMobbers for help with this. Any documentation of these events can be used to investigate the harassment and can be pivotal in any future criminal or civil litigation (Take a look at our Online Safety Guide for tips on how to document harassment):

    • The nature, frequency, and specific details of each threat or act of violence, including copies (if any) of threatening messages, photos, or other correspondence;
    • Physical or online stalking of the target;
    • Any imminent threats of physical violence;
    • Any prior acts of violence and, if applicable, any related reports or investigations;
    • Any civil restraining orders or protective orders and violations of the same;
    • All other incidents involving threats, violence, stalking, harassment, or intimidation; and
    • Any witnesses to the above.2

    It can be helpful to keep something like a journal in order to keep everything straight. You want to record the date and time of the harassment as well as the harasser's name and a screenshot of the interaction. You can bring this to the police or a lawyer. This type of documentation is useful to have since it is more concrete than trying to recall all the specifics after the fact.

    If you are being harassed using texts or phone calls, call your phone company and ask for the phone bill records of text messages as well as incoming and outgoing calls. This counts as 3rd party documentation.

    Who can report online harassment to legal authorities?

    Anyone who is aware of online harassment can report it to the authorities.3 However, a law enforcement agency may require that either the person experiencing harassment or their legal representative of guardian file the related police report.

  2. Going to the Police

    Will the police understand online harassment? How can I explain?

    As awareness around online harassment increases, the police should understand the seriousness of online harassment and its potential risk to people who have been targeted. However, law enforcement and the legal system are not entirely caught up to our current situation so you may experience a general lack of understanding or unhelpfulness from police. If you have the resources to do so, you can have an attorney or victim’s advocate (Google “Victim Advocate *insert city here*") present while filing a police report to help ensure the process is handled appropriately. It’s also always good to bring a trusted friend because they can support you as well as act as a witness if the police are unresponsive. When filing a police report, You should explain your experiences of online harassment in your own words, using as much detail as possible and incorporating the information and documents (regarding the nature and frequency of the harassment) described above. Try and keep the language simple and tech jargon free as many individuals will not understand.

    What should I expect if I file a police report?

    Going to the police can be intimidating, especially as many of us have never had to go the police or file a police report before. It is even trickier when reporting online harassment as you may not have the names of your harassers and where they are (making it difficult to decide which jurisdiction to report in). It is also important to keep in mind that the reporting procedures in police departments vary from state to state. Some will send officers to you, some require you fill out paperwork in person, some have online forms for things like prank calls. The best way to find out your local PD’s procedure is to call the non-emergency line and ask about filing a police report.

    • Overview

      Investigators will typically begin their investigation by conducting an in-depth interview with you and reviewing all available evidence to determine the validity and seriousness of the complaint, the risks to the complainant, and the key facts and details regarding the cyberstalking or harassment.4
      • If possible, bring in printed copies of your evidence (such as screenshots) in addition to a thumb drive or external hard drive. Make it as easy as possible for the police to understand what you’re talking about. Make sure you have a copy of all the evidence for yourself in case the police lose something.
      • Police are obligated to take a report from you and having a report is the first step in the chain of law enforcement’s involvement. If a police officer seems unwilling to take a report from you let them know that you would like one for your records and are establishing a paper trail in case you need one later. If the police continue to be unresponsive, ask to speak with a supervisor.
    • Interview

      During the interview, describe in detail the relationship with the offender, if any, including information such as the length and nature of the relationship. You should provide, if possible, detailed information regarding when the harassment began, the frequency of the harassment, and all methods by which the harassment took place (e.g. in person, via phone, texts, emails, online – and if so, specific websites, apps, or forums used).5
    • Information to Provide

      You should also provide any known identifying information regarding the offender, such as name, address, phone number(s), email address(es), user name(s), social media accounts, and even internet server providers. As online stalkers and harassers are often anonymous, presenting potential roadblocks to investigations and litigation, any identifying information may prove helpful in correctly identifying and finding the offender. This is especially important because police will rarely go out of their way to do things like trace back IP addresses or work with social media. The more details that you can provide about who is doing this to you, the better. You may also be asked whether you responded to the offender or took any steps to stop the harassing behavior, such as telling the offender to stop or reporting the conduct to an internet service provider or another third party.6
    • Offender Information

      You should provide, in as much detail as possible, information regarding all correspondence with the offender, including communications which may not have been expressly harassing or threatening. If witnesses have observed any of these communications, you may want to provide their information as well so they may be interviewed, if necessary.
    • More Info

      Investigators may take a more aggressive approach to cases involving threats of physical violence, such as obtaining emergency search warrants or other court orders. Investigators may also be able to obtain subpoenas, without notifying the offender, so as to collect additional evidence regarding the harassing conduct.7

  3. Going to a Lawyer

    Where can I find a lawyer?

    Many local city, county, and state bar associations offer free lawyer referral and information services (available at http://apps.americanbar.org/legalservices/lris/directory/). The National Crime Victim Bar Association can also provide referrals to people experiencing online stalking and harassment (available at http://www.victimsofcrime.org/our-programs/national-crime-victim-bar-association).

    Additionally, many local legal aid organizations and clinics also offer legal referrals, and some offer legal services at no or minimal cost. Regional advocacy groups can also provide referrals to attorneys or appropriate legal aid organizations.

    What is a restraining order and can I get a restraining order against someone who harassed me online?

    A restraining order (also referred to as a protective order) is a temporary court order issued to prohibit an individual from carrying out a particular action, such as approaching or contacting a specified person. Restraining orders can be sought as a form of protection against physical or sexual abuse, threats, stalking, or harassment and can sometimes be granted not only for the targeted person, but also family or household members.

    While the laws governing restraining orders vary by state, restraining orders can and have been issued in the context of online harassment.8

    Do I need a lawyer to file a restraining order?

    Many local city, county, and state bar associations offer free lawyer referral and information services. The National Crime Victim Bar Association can also provide referrals to people experiencing online stalking and harassment.

    Additionally, many local legal aid organizations and clinics also offer legal referrals, and some offer legal services at no or minimal cost. Regional advocacy groups can also provide referrals to attorneys or appropriate legal aid organizations.

    Google “How to get a restraining order in (city)” to find out the local process.

    You do not need a police report to file a restraining order but it can be helpful.

  4. Definitions

    In legal terms, what is cyberstalking?

    While the definition of cyberstalking varies, generally it is the use of electronic communications with the intent to kill, injure, harass, intimidate, or surveil a person that would cause a person to reasonably fear death, serious bodily harm, or substantial emotional distress to themselves, an immediate family member, or a spouse or intimate partner.9 Some states will only classify behavior as cyberstalking if it includes a “credible threat,” which usually involves proving the harasser’s intent to cause fear for their safety or their family’s safety.10

    In legal terms, what is cyberharassment?

    Cyberharassment generally consists of electronic communications that’s intent is to "annoy, alarm, abuse, torment, or embarrass the target."11

    What is the difference between cyberstalking and cyberharassment?

    While the terms cyberstalking and cyberharassment are often used interchangeably, the difference is based on the offender’s intent and motive. Specifically, the intent of cyberstalking is to cause harm or fear whereas the intent of cyberharassment is to annoy or torment.12

    What is doxing?

    Doxing is the act of “revealing personal information and documents to the public” by publishing it online.13 The personal information often includes identifying information, such as the target’s name, address, and contact information, and is typically done with a malicious intent.14

    What is swatting?

    Swatting is the act of making hoax emergency phone calls in order to provoke an armed police response from a SWAT team. The purpose of swatting is to harass someone believed to be at a specific location.15

  5. Laws

    What federal laws are there against online harassment?

    In order for a federal law to be broken, there has to be communication across state lines. While there are federal laws that protect you from online harassment, your local police may be more familiar, and actions may be easier to take, with local laws. Federal laws must be enforced by the government, which means that an individual cannot take on this kind of case themselves. You are more likely to be successful with the federal government if you have a documented case with local law enforcement. If you feel that your case should be looked at on the federal level you can consult a combination of victim advocates, lawyers, and police departments. You can also report internet crimes to the FBI here.

    • It is a federal crime to knowingly use a “telecommunications device” (such as a phone, tablet, computer, etc.) to send obscene comments, requests, suggestions, proposals, and images (including child pornography) across state lines with the intent to abuse, threaten, or harass another person.16
    • Someone who violates any part of this law can be punished with a fine, up to two years of imprisonment, or both.17

    What state laws deal with online harassment?

    Many state laws regarding stalking and harassment have been amended to include language addressing the use of electronic forms of communication to stalk or harass. Some states have also drafted new legislation focused specifically on the issue of online harassment. As of 2013, both California and New Jersey have enacted “revenge porn (or nonconsensual porn)” laws which make it illegal to post sexual photos online without the subject’s consent.18 A number of online resources, including some of those listed below (such as Working to Halt Online Abuse & the Stalking Resource Center), offer state guides setting forth the online harassment laws of each state.

    What is the difference between a civil and criminal case?

    A significant difference between the criminal and civil court systems is that in a civil case, the person experiencing harassment controls essential decisions shaping the case. It is the victim who decides whether to sue, accept a settlement offer, or go to trial. Criminal cases are considered offenses against the state, and the prosecutor works with the police (not you) to file the case in court as a representative of the state). Civil 91178887d815b71c8bbb923112064bd7564efab682ee5b12a5a8e6ca709cf1e4

    Does online harassment fall under civil or criminal law?

    Each of the federal online harassment laws discussed above fall under criminal law. However, people experiencing online harassment can also file a civil lawsuit against their harasser for defamation, invasion of privacy, or intentional infliction of emotional distress. Below is a description of each of these terms; please keep in mind that these terms can be subjective in the eyes of the law, and are usually left to be proven by the person who is bringing the charge.

    • Defamation – A person may be legally responsible for written defamation (such as a tweet or a facebook post) if he or she publishes a false statement that is damaging to a person’s reputation.19
    • Invasion of Privacy – A person can be held legally responsible for an invasion of privacy that causes harm to the person experiencing online harassment.20 Invasions can take the form of:
      • an intentional intrusion upon a person’s private affairs or concerns in a way that would be highly offensive to a reasonable person;21
      • using the name or likeness (e.g. image or photo) of another for one’s own use or benefit;22
      • publicizing a person’s private matter, which is not of legitimate concern to the public, in a manner that would be highly offensive to a reasonable person;23 or
    • Intentional Infliction of Emotional Distress (IIED) – A person can be held legally responsible for the intentional infliction of emotional distress if the person experiencing harassment can show that the defendant acted intentionally or recklessly; their conduct was extreme and outrageous; and the conduct was the cause of severe emotional distress.24

    In the case of unauthorized online posts of sexual photos, commonly referred to as "revenge porn" or "nonconsensual porn," the subjects of the photos can contact the host website and demand the removal of the photos under copyright law.25 Specifically, under the Digital Millennium Copyright Act (DMCA), the person in the photo automatically owns the copyright to that photo and has the right to send a DMCA takedown notice to a website's operator. While an attorney can assist in drafting and submitting a DMCA notice, step-by-step self-guides are also available online.

  6. More Information

    Where can I get more information?

    Additional information regarding legal rights and remedies under both federal and state law, and related resources, are available at:

References

  1. See U.S. v. Bowker, 372 F.3d 365, 377 (C.A.6 (Ohio), 2004)
  2. See Rose L. Romero, Strategies for Preventing and Prosecuting Cyberstalking or Harassment Crimes, Thomson Reuters/Aspatore, 2014, at 7.
  3. See Department of Justice, Criminal Division, “Reporting Computer, Internet-Related, or Intellectual Property Crime,” (December 2015) (available at https://www.justice.gov/criminal- ccips/reporting-computer-internet-related-or-intellectual-property-crime#)
  4. Rose L. Romero, Strategies for Preventing and Prosecuting Cyberstalking or Harassment Crimes, Thomson Reuters/Aspatore, 2014, at 7.
  5. Id
  6. Id
  7. Id
  8. See Paul Lambeth and Jonathan Coad, “Serving the Internet: Nowhere to Hide in Cyberspace,” 1 Cyberspace Lawyer, Sept. 1996, at 6.
  9. See 18 U.S.C. § 2261A.
  10. See e.g. California Penal Code § 646.9
  11. Rose L. Romero, Strategies for Preventing and Prosecuting Cyberstalking or Harassment Crimes, Thomson Reuters/Aspatore, 2014, at 2.
  12. Rose L. Romero, Strategies for Preventing and Prosecuting Cyberstalking or Harassment Crimes, Thomson Reuters/Aspatore, 2014, at 2.
  13. Nancy Leong and Joanne Morando, Communication in Cyberspace, 94 N.C. L. Rev. 105, 107 n. 4 (December 2015).
  14. See Brennan v. Stevenson, 2015 WL 7454109, at *1 n. 1 (D.Md., 2015).
  15. Department of Justice, Criminal Division, “Massachusetts Man Charged with Making Hoax Emergency Service Calls to Elicit Swat Team Response” (August 9, 2015);
  16. 47 U.S.C. § 223(a)(1)(A).
  17. 47 U.S.C. § 223(a).
  18. Lorelei Laird, Striking Back at Revenge Porn: Victims Are Taking on Websites for Posting Photos They Didn’t Consent To, ABA Journal, November 2013, at 47.
  19. See generally Sarah Jameson, Cyberharassment: Stroking a Balance Between Free Speech and Privacy, Comment, 17 CommLaw Conspectus 231, 257 (2008).
  20. Restatement (Second) of Torts § 652A (1977).
  21. (§652B)
  22. (§ 652C)
  23. (§652D)
  24. Restatement (Second) of Torts § 46 (1965).
  25. Lorelei Laird, Striking Back at Revenge Porn: Victims Are Taking on Websites for Posting Photos They Didn’t Consent To, ABA Journal, November 2013, at 47.