The New Virtual Reality: Protecting Victims of Cyberstalking
Over the course of the past few decades, the proliferation of internet connectivity and new technology has allowed stalkers to terrorize their victims from afar. Many state stalking laws are difficult to apply in the best of circumstances, but cyberstalking is often more anonymous, and a stalker’s identify can be hard to prove. This program will discuss the law that applies to stalking, special considerations when cyberstalking is involved, and strategies for collecting, preserving, and preparing to introduce evidence of cyberstalking.
Ashley Carter - Hi, everyone. Welcome to "The New Virtual Reality, "Protecting Victims of Cyber Stalking". My name is Ashley Carter and I'm a managing attorney at the DC Volunteer Lawyers Project in Washington, DC. I focus my practice on representing survivors of domestic violence, sexual assault and stalking and I'm really excited to be giving this presentation today and speaking with you about cyber stalking. This is something that has really been on the rise and I think is really important for attorneys, particularly those who are interested in assisting victims. So I'm hopeful that you'll come away from this presentation today with some skills that will assist you in that representation. In terms of course objectives, following today's training, participants will understand the law surrounding stalking and particularly virtual forms of stalking or cyber stalking, recognize legal relief available for stalking victims and be prepared to collect evidence and spot issues that might arise when representing cyber stalking victims. So we'll start with just an overview of stalking and what the issue is. In the year 2019, 3.4 million people in the United States who were aged 16 or older were victims of stalking. That is one in six women, about 16%, and one in 19 men in the United States have experienced stalking victimization at some point during their lifetime. One in six women is a huge number. Less than a third of those victims about 29% reported the victimization to police. So we know that there's an enormous issue but it's often going unreported particularly to the criminal justice system. The impact of stalking according to the National Coalition Against Domestic Violence, one in seven stalking victims has been forced to move as a result of their victimization. Just think about that for a second. One in seven of these people who've been affected have had to up and move their entire home. It's a huge disturbance in their lives and these are people who really feel like they have nowhere to go to escape. One in eight stalking victims has reported losing work because of the stalking and more than half of those victims reported losing five or more work days and I can also say anecdotally that a number of my clients feel like they have to move jobs as well because of stalking because there is no escape as long as this person knows where they work. And stalking is often an indicator of other forms of violence as well. 81% of women who were stalked by a current or former husband or co-habitating partner were also physically assaulted by that partner so we know that there is a correlation between stalking and other forms of violence. 31% of those women were sexually assaulted by that partner. And in addition to that, we know that 76%, and that's enormous, 76% of women who were murdered by an intimate partner were stalked first and 85% of women who have survived murder attempts were stalked. That really is an incredible figure. We know that stalking is a very accurate predictor of future violence, particularly attempts at murder and so it's really important that when we see stalking behavior, we take it seriously and we recognize the impact that it can have. And when you really look at all three of these statistics, stalking has a huge impact on people's lives. They have to move, they have to quit work, or lose work, or lose income. They might be a victim of an attempted murder. And we know that stalking is predictive of all of those things. So it's incredibly important to recognize that stalking has a huge impact on people who are victims. Now in terms of what the law says, the law has really been developed pretty recently. This is a very modern body of law. California enacted the nation's first anti-stalking law in 1990. So when we think about it, these laws are at most 32-years-old. That is the oldest stalking law that we have. At this point, all 50 states and the federal government have criminalized stalking in some form so we know that it is now criminal in all 50 states to stalk someone, but the laws vary wildly by state. There are enormous differences state by state. Federal law, as I mentioned, also criminalizes stalking and the federal law looks very different from most state laws. There was a model stalking code that was initially developed in 1993. There was a Congressional request to develop a model for the states knowing that many states did not have a stalking law at that point and there was a need to really give them advice on how to craft one. That model stalking code was adopted by a number of states and then due to challenges in court and sort of states grappling with constitutional issues including first amendment issues, now statutes sort of look different across the states. And there was a revision to the model stalking code in 2007 to reflect some of those changes that there had been constitutional challenges and courts had ruled on those constitutional challenges. There was also new research on stalking that had been completed. And in particular, cyber stalking was raised as an issue because previous to 2007, when the 1993 model code was developed, stalking was really thought of as following someone physically, monitoring them physically and we know now that oftentimes that's not the case, oftentimes stalking is taking place virtually at this point. And technology, as it has changed has continued to allow for an increase in cyber stalking. So the model stalking code was revised in 2007 to reflect some of that new research to reflect that a lot of stalking is now taking place using technology that didn't even exist in 1993 when the original model stalking code was developed. So we have a revised version of the model stalking code and we'll sort of do a comparison and contrast of some different statutes so that you can see the differences that might exist in between some of those statutes. So the first statute that we're going to take a look at is the federal stalking statute and that's codified at 18 US Code Section 2261A and there are sort of two parts to the federal stalking statute. The first part is about traveling in interstate commerce or entering the United States territorial jurisdiction or entering or leaving Indian country. So these are sort of a jurisdictional question, right? The federal government has the authority when you travel in interstate commerce, or if you're entering territorial jurisdiction, or if you're entering or leaving Indian country, then the federal government has the authority to make something a crime. If you travel in interstate commerce with the intent to kill, injure, harass, intimidate, or place someone under surveillance with the intent to harm or intimidate them and in the course of that conduct you place someone in reasonable fear of death or serious bodily injury to that person, to their immediate family member, to their spouse or intimate partner, or to their pet, that conduct can be stalking. Or if you're not engaging in contact that specifically places someone in fear of death or serious bodily injury, but you are engaging in conduct that causes or attempts to cause or would reasonably expect it to cause substantial emotional distress to the victim, that conduct is also stalking. So when you look at stalking statutes, one theme that you will see is that they're often talking about a course of conduct, and you'll see this in some of the later statutes that we look at, what you're looking at is sort of multiple incidents and conduct that could be varied widely, right? Conduct can be a lot of different things, but what we're really looking for is conduct that is intended to cause someone substantial emotional distress or fear. And that is another theme that we're going to see is fear or emotional distress, substantial emotional distress are sort of the hallmarks of the stalking statutes. What we're looking for is conduct that is intended to cause someone fear or intended to cause them distress or that would be reasonably expected to cause them distress. So when you look at the intent provisions of many of these stalking statutes, there's often a knowing or intentional course of conduct but there's also a provision that conduct that you should have known would cause someone emotional distress can also be considered stalking. And that's because we really want to criminalize behavior that even if a person we can't show their objective knowledge, if they should have known and sort of were acted negligently, we still want to criminalize that behavior. And oftentimes someone might unreasonably think that their conduct is not gonna cause someone injury or that they, oftentimes we have stalkers who have serious mental illness and think this person wants to hear from me, they want me to contact them, even if reasonably that's not true and reasonably a person would not act in that way. So we are trying to make sure that unreasonable conduct, even if it's not knowing conduct is still criminalized. So that's the first part of the federal stalking statute. If you're traveling in interstate commerce or you're in Indian country or you're in territories of the United States and you are acting with the intent to kill injure, harass, intimidate someone and you engage in conduct that places a person in fear of their death or serious bodily injury or the death or serious bodily injury of another person or you're engaging in conduct that causes or attempts to cause or would reasonably be expected to cause someone substantial emotional distress, you are engaging in stalking under the federal stalking statute. Then we have a second section of the federal stalking statute which criminalizes placing someone under surveillance or contacting them or intimidating them using the mail, using a computer device or electronic communication or an electronic communication system of interstate commerce or some other facility of interstate or foreign commerce. So this is really aimed at things like cyber stalking, right? Where you're not necessarily crossing state lines. You're not necessarily entering into Indian country or territory of the US, but you are using the mail which is a system that sort of crosses state lines, or you're using electronic communications that are engaged in interstate commerce or some other facility of interstate commerce. And that's again, so that the federal government has clear jurisdiction over what's happening. So if you use the mail or computer or electronic systems that are operating at interstate commerce and you place a person in reasonable fear of death or serious bodily injury to any person, pet of that person or emotional support animal or you cause, attempt to cause, or again, would be reasonably expected to cause substantial emotional distress to one of these people, then you can be prosecuted for stalking under the federal stalking statute. So again, we're seeing communication that's engaging in a course of conduct, that's language that we're going to see in most stalking statutes and it's really so that, it's not one incident, right? We're not looking for one scary incident, we're looking for several, we're looking for a pattern, that's the hallmark of stalking. In addition, you have that language that it causes, attempts to cause, or would be reasonably expected to cause someone to feel substantial emotional distress. So if it's reasonably expected, that's sort of the more negligent standard. If you're trying purposefully to cause someone emotional distress, that's one thing, but we're also criminalizing behavior that you should have known that would've reasonably expected to cause substantial emotional distress to someone. And so under the federal stalking statute, you're seeing some of the hallmarks of what many stalking statutes look like. Since I practice in Washington DC, I also wanted to take a look at the Washington DC stalking statute, which is DC Code Section 22-3133. So the Washington DC stalking statute is actually in large part based on the original model stalking code that was passed in 1993. It does look a little different. There have been changes made to it since the model stalking code was released and so there is a more modernized version of this statute, but it does largely mirror what the original model stalking code kind of looked like. So pursuant to the DC code, it is unlawful and it is characterized as stalking under the statute for a person to purposefully engage in a course of conduct directed as specific individual. So again, we see that course of conduct language, right? And as I said earlier, that can be any number of things. A course of conduct could be following someone. It could be calling them. It could be tracking them using a GPS device. It's really about multiple different things and multiple incidents. It could be talking to someone, it could be calling their work. It could be calling their school, things like that. So there are many different ways you could engage in a course of conduct but what we're really looking for is that course of conduct to be more than one incident. So a course of conduct directed at a specific individual with one of three possible intents. The first is actual intent to cause that person to fear for his or her safety, to feel seriously alarmed, disturbed or frightened or to suffer emotional distress. So that's the intentional piece, right? That is I knew I was going to do this and I did it on purpose. Then we have the state of mind that the person knows would cause an individual reasonably to fear for his or her safety, to feel seriously alarmed, disturbed, or frightened, or to suffer emotional distress. So this is slightly different, right? This is not necessarily I acted intentionally to make this person feel this way but I knew it would cause them to feel that way and I did it anyway. So I knew that they would reasonably feel seriously alarmed, disturbed, or frightened, even if my intent wasn't necessarily to do that, maybe my intent was to get back into a relationship with them or my intent was to just have a conversation with them, but I knew that by doing what I was doing, I would cause that person to fear for his or her safety, to feel seriously alarmed, disturbed, or frightened, or to suffer emotional distress. And then finally we have the should have known state of mind. You can't engage in a course of conduct that you should have known would cause a reasonable person in the individual circumstance to fear for his or her safety, to feel seriously alarmed, disturbed or frightened, or to suffer emotional distress. Now what you'll notice about this third intent is that this is about a reasonable person, right? This is about what a reasonable person would feel and what you should have known a reasonable person would feel. And this is a little bit different than the intent that is direct intent, right? So if you look at provision one, if you act with the intent to cause a specific individual to suffer emotional distress or feel seriously alarmed, disturbed, or frightened that specific intent to cause that individual that suffering is what's criminalized. And again, if you move down to the conduct that the person knows would cause that individual reasonably to fear for their safety or feel seriously alarmed, disturbed, or frightened, that's about the particular individual, again, who's being stalked. This third provision is about reasonable people. So this sort of makes sure that we're protecting people who maybe sort of look like an eggshell plaintiff. If we know that the person who was engaging in the course of conduct meant to make them distressed, right? So if I am an eggshell plaintiff, I am afraid of phone calls. I'm deadly afraid of phone calls. That's not necessarily reasonable, but if this person knows I am terrified of phone calls and so they call me 50 times a day and they intend to cause me emotional distress or they know that would cause me emotional distress, it doesn't matter that I'm unreasonable, right? What matters is that they intended to cause me harm or they knew it was going to cause me harm and they did it anyway. So even though I'm an eggshell plaintiff, we don't wanna allow people to engage in conduct that's going to be seriously distressing to others, right? That is criminal activity. But if we're saying you should have known what was happening but you didn't actually know, then we're using a reasonable person. We're saying only reasonable people are going to be protected under this sort of should have known circumstance. We don't want to overly protect the eggshell plaintiff, right? If it's not reasonable for me to be afraid of phone calls and the other person had no idea that I was afraid of phone calls, it's unreasonable to say, "Well, you should have known that this specific person "would feel afraid of phone calls." So this third provision is really an objective perspective, an objective reasonable person. So as you can see, this statute is complicated. There's a lot going on in stalking statutes and often that is the case in DC, in particular, the statute can be hard to apply, it can be tricky to discuss and tricky to have a judge apply and so I just wanted to walk through some of the nuances of that so that you can see how DC has tried to approach it. Now I don't practice in Maryland, but I think Maryland has a very interesting stalking statute as well. So we're gonna discuss Maryland's Criminal Law Code Section 3-802. And in this section, stalking means a malicious course of conduct. So again, we see that course of conduct language. We're looking for more than one incident, looking for something sustained over time with more than one thing happening that includes approaching or pursuing another. So that could be included in a course of conduct where, one, the person intends or knows or reasonably should have known that their conduct would place another in fear of a variety of violent crimes or that a third party would suffer any of those acts. So again, we're looking at that intends to hurt someone and make them scared or knows or reasonably should have known that their conduct was going to make someone scared. So when we have actual intentional conduct or knowledge, we're not looking for reasonable, right? But if we're looking at a should have known negligence standard, we're looking for someone who reasonably should have known what their conduct would do. We're looking at a more objective standpoint. And then part two, the person intends to cause or knows or reasonably should have known that the conduct would cause serious emotional distress in another. So again, Maryland sort of has two approaches to this. The first thing that you can do in stalking is if you're causing someone to fear that they're going to be hurt, the victim of a crime, an assault, a rape, or that you're going to kill them, that can be stalking. And this is something that you'll see a lot in stalking actually, is that sometimes a pattern of stalking is made up of multiple different crimes. So it's a crime to cause someone to think you're going to kill them, right? You can't threaten people. You can't attempt to hurt them. And so that conduct could be part of stalking under this statute, causing someone to fear you will kill them, threatening them. Those are things that may be underlying parts of a course of conduct, but it's often that these things are happening in conjunction with other things, which is what makes them so scary. And then again, we see this provision also, even if you didn't cause somebody to fear that they would be in danger of serious bodily harm or that you were going to assault them, if you knew or intended or you reasonably should have known that your conduct would cause serious emotional distress, that is also stalking. And so again, you're gonna see the serious emotional distress come up in many different stalking statutes because that's what we wanna prevent. We don't want people to intentionally engage in conduct that's going to distress others. We don't wanna permit that. And again, if it's under a more objective should have known standard, we're gonna say it has to be reasonable that you should have known. Now, finally, we're gonna look very briefly at what I think is a really interesting proposed update and this is the proposed Model Stalking Code 2007 version. And so this is a very short statute and very limited compared to sort of the longer, more complex statutes that we've looked at. So the 2007 version of the Model Stalking Code proposes that stalking should say, "Any person who purposefully engages "in a course of conduct," so again, that course of conduct language, "Directed at a specific person "and knows or should know that that course of conduct "would cause a reasonable person "to fear for his or her safety "or the safety of a third person "or suffer other emotional distress is guilty of stalking." So some things that I think are interesting about this, we again have the know or should have known course of conduct. I actually think it's interesting that they did not include intentional conduct in this particular circumstance. I think knowing and intentional are often the same and often the proof is the same, but they are a little bit different, right? I can intend to cause you harm and not really know if it's going to cause you harm. It's really about what I want. So maybe I don't know for sure that it will cause you significant emotional distress, but that's what I wanted, that was my intent and so that's why I engaged in that conduct. It is a little bit different, I think, than knowing, but oftentimes they could be conflated and so I can see why they thought it would make more sense to make the statute simpler. In addition, the should have known language is still in here, but the reasonableness is not necessarily applied to the should have known standard. The reasonableness applies to the victim in this case, the person who sort of were looking at what they would experience based on this course of conduct. So it's you should have known that the course of conduct would cause a reasonable person to suffer emotional distress or fear for their safety. So we still have that objective sort of third person question, but it's applying to the victim rather than the reasonableness of whether someone should have known what their conduct was going to do. But again, you're gonna see common language. You're gonna see fear for his or her safety or the safety of another person. We don't want people to feel scared. We don't want people causing people to feel scared for their safety or suffer emotional distress. So those are some of the things that you'll see in many different stalking statutes across the country. Now that we sort of explored what stalking law looks like, I'd like to talk about what cyber stalking looks like and why it's so concerning. So when we think about what stalking looks like, a lot of us think about, and this is sort of what was happening when stalking statutes first came out, we think about physically following someone, showing up at their job, showing up at their home, showing up at the coffee shop they go to and following them. But that's pretty easy to spot, right? You can see someone do that. You can look at a video camera and see them pop up outside the coffee shop. Cyber stalking is different and more concerning because it can be done from a distance. We didn't really anticipate that when stalking laws were first drafted it can all be done virtually. The rise of digital media and constant online usage has really made this more possible. Many of us are online all the time. Many of us are constantly using email. Many of us are constantly using social media and it can make us easier to find because we're publicly posting, "I went to this coffee shop today. "Here's a picture of me with my friends at this location." New technology also means you can stalk someone and figure out where they are physically without following them. You don't even have to show up sometimes. So maybe you have attached a GPS device to someone's car or you have accessed their online accounts that are connected to their cell phone and now you have their GPS data. You don't actually need to leave your house to know where they are and be able to find them, technology does make it easier to find someone if the stalker does intend to cause the victim harm, so it's even more concerning, right? When we're so connected digitally that someone can find us. If they truly do want to cause us physical harm, it can make it much easier to find the victim. And so again, when we have these statistics showing us that people who are stalked first are often then murdered or often there's an attempt to murder them, it's even more concerning, right? That we know technology can make it easier to find someone and that if they do intend to cause the victim harm, the victim is easier to find. Something else that causes more challenges is that cyber stalking can be more anonymous. So cyber stalking is something that you can sort of conceal your identity. If you have to show up at someone's coffee shop, if you have to show up at their house or show up at their job, it's hard to hide who you are. But if you are following someone online, you can make an account with a fake name. You can include fake pictures. You can hide your IP address so that they can't figure out where you're coming from. So there's ways to be much more anonymous and it's harder to track people. It's harder to figure out who they are and what they're doing. Now this is also a problem jurisdictionally and one of the reasons that the federal stalking statute is so important, it's hard to tell where stalking occurs sometimes. Many states have passed jurisdictional statutes saying, "Well, if your communication enters our jurisdiction, "like you're communicating with the victim "and the victim is here, "or you have posted about them online "and the victim can access it from this state. "we are going to say there's jurisdiction. "Or if you were inside our state "and you were sending messages from our state, "we're going to take jurisdiction." And I think that makes sense because we know that stalking now, particularly with technology, can take place across state lines very easily. The internet has made it very easy to communicate worldwide. You might be stalking someone from Germany and we will never be able to get jurisdiction unless we're taking jurisdiction over actions that are entering into the United States. And additionally, because of some of the unique problems of cyber stalking, some states have tried to address cyber stalking by passing separate statutes that govern cyber stalking but there are significant problems with that because oftentimes, and when we think about stalking as a course of conduct, oftentimes there are multiple things happening at once. So there's some form of cyber stalking taking place. Someone is using the internet to figure out where you are. Someone is using the internet to send you incessant messages, hundreds of messages a day, but they might also be showing up in person. They might also be calling your job. They might also be following you outside your workplace, and so all of these things are happening, or maybe they're popping up at your house and taking photos. So all of these things are happening together and they should all be able to form a course of conduct. And it's troublesome that some states have said, "Well, cyber stalking and online conduct "are a separate thing" because in reality they're often tied together. So it makes sense for us to have all of those possible courses of conduct placed together so that we can address them all at once. So we've already talked a little bit about what stalking can look like, but I'd like to talk about some of the most common cyber stalking conduct because it's very specific and I think that there's some things that we need to think through and as we'll go through later, talking about preparing and collecting evidence, it's important to know all of the different kinds of things that could be going on. So we might start with online monitoring and a lot of times this looks like monitoring of social media accounts, right? This is somebody who's constantly checking your Facebook or your Instagram or your Snapchat and saying, "I can see where you are." And maybe they're using that monitoring to harass the person. Maybe they're using that monitoring to figure out where they are physically so they can follow them. It's really about controlling that person and figuring out what's happening in their lives and making it difficult to escape from the stalker. Monitoring email, so oftentimes we are encountering stalking in cases where people used to be in a romantic or dating relationship or maybe they were married, so oftentimes they might have shared accounts or they might have shared their password with the person because they were in a previous relationship so sometimes that person keeps track of that email address or password or whatever and then can get back into your email and monitor it. Or you might have someone stalking their wife or their current partner that the partner has no idea it's happening. And so this person is in their email accounts, checking to see what they're buying, checking to see where they're going. So important to sort of counsel clients and ask clients, "Well, do they know the password to your email account? "Could somebody possibly be looking "at your email or reading them? "Or do you have a shared device "where you're both logged in?" Maybe it's an iPad or a computer where both people have their password saved. So checking, could this person be looking at your email? Posting actively about a client. I've had cases where someone was harassing my client by posting about them even though they weren't directly messaging my client, they were trying to get to the client and that was clear, right? They were trying to communicate with her by saying this person is X, making false statements about the client, sometimes posting photos of them together along with statements about the client and that can be really harassing even if it's not directly contacting the client. Of course the client's going to see it. Her friends and family members might see it and so she might feel that this person is sort of inescapable because they're posting about her even if they're not communicating directly with her. I find that tagging others is a very creative strategy that stalkers sometimes use to harass their clients. So oftentimes the stalker will go after everyone in your client's life to try to make it feel like they are inescapable, right? Maybe they will contact your mom. Maybe they'll contact your best friend, they'll contact your brother or your sister or your new partner, tag them in a million social media posts, make those posts about you, make those posts about them. I had one stalker who would go on to my client's friend's Yelp pages or different reviewing sites and review their businesses and say that they were supporting my client. Stalkers really will go to any length to sort of attack everyone in the client's life. So sometimes it might not just be your client, it might be that they're tagging other people or posting about other people on social media. So then there's physical monitoring using electronic means. Apple AirTags, I think are sort of one of the newer methods that stalkers can use and honestly have been a little bit of a nightmare for victims of stalking. These are sort of really small devices that you can attach to someone's purse or to their keys or you can put in their car. They're very small, they're hard to notice and they're actively sending tracking information and it's very hard to know that they're there, but someone can be using their phone to track you and you might not know it's there. We'll talk a little bit about some things that you can do and some special considerations with things like AirTags. You can buy a traditional GPS tracking device. You might attach it to someone's car. They're also very small. Oftentimes we'll have clients who don't find out that they've had a tracking device on their car until they take the car or to the shop one day or take it to the car wash and the person who's washed their car says, "Hey, this fell off," and they realize that there's been a GPS device for months. And one thing that people think about a little bit less is their cell phone as a tracking device. So maybe your client has an iPhone and they have a program called Find My iPhone which is popular on Apple devices and they didn't know it but the abuser has shared their location, has gotten into her phone and put into the app share my location with this person. Or, and this is often something that we think about when we have individuals who are being stalked by a partner with whom they have children in common, sometimes the abuser will use the child to be the tracking device. So they will say, "Hey, here's your phone. "I'm gonna figure out the Find My iPhone app on your phone "and I'm gonna share the location with me "so that I can see whenever you're going somewhere "or I can keep track of you." But in reality, they're using Find My iPhone or that cell phone to track the child back to the other parent's house. I have a client who in the past this has happened to where she realized that her child's phone was being used to figure out where her new address was. So this is something that doesn't happen infrequently. It actually happens pretty frequently where the child is being sort of used as a go between to figure out the person's new address. So another method that might involve technology that a cyber stalker might use might involve spoofing their calls or text messages. This is something that's really proliferated in the last few years. So there are applications that you can download on the internet that can provide you with a fake phone number or change your phone number to be used to make calls over the internet and they can be made from a different phone number every single time you make a call. There are also programs like Google Voice or TextNow that are apps that you can use to get basically a new phone number and that you can then use to call or text, again, over sort of Wi-Fi or over the internet and they will hide your real phone number, but they're often still using a real phone number to make those calls, it's just that they are routing it through a separate number that shows up on your caller ID. So if you believe that a stalker is using one of these applications, it's worth subpoenaing their real phone records if you know their real number to see if they're using that phone number that you know is real to make those calls, but using Google Voice or TextNow to sort of cover up their phone number. But this is something that's definitely come up in the last few years that people are using these new phone numbers without ever having to change their real phone number. They just download these applications that can change their phone number or allow them to text from a different number. You might have someone monitoring through home technology. I think this is actually terrifying and something that we've seen sort of on the rise, particularly if people have shared a home in the past as smart home technology is being adopted and you have remote control of things like temperature or whether or not the door is locked or whether the lights are turned on or not. You can have people who maybe don't live in the home anymore but have access to the applications that are being used to manage the smart home technology, they might be able to change the temperature. So one minute it's freezing cold in the house and in the next minute it's a hundred degrees because they're setting the temperature from outside of the house or they're using smart locks to lock the client out, changing the code that is used on the lock. So there are a number of different ways that this can be abused. It could also be used just to track someone, right? If they have access to somebody's smart lock, you can tell when they're coming in and out of the house, when they're coming and going. So having access to those applications and having access to that technology can be really dangerous for the client and can be really maddening. Imagine being in your home and your lights keep flickering on and off and the temperature keeps changing and you can't control it from inside your house. It can be a very scary and miserable experience. So this is something that has been on the rise in the last few years and something that if your client does have smart home technology that I recommend that you warn them about or ask them about. And finally, something that has also proliferated in the last few years is the use of revenge pornography. This is also a separate crime and as I mentioned, oftentimes, conduct that makes up cyber stalking is actually a separate crime, but it's all part of a course of conduct as well. So revenge pornography, as many of you are familiar with, I'm sure, is when someone posts nude photographs of someone without their permission and it can be done online, or they might be sending to certain individuals revenge pornography, but oftentimes it might also be that they're posting it publicly or they're posting it on a pornography website for other people to look at. So this can be something where it's really hard to control and it's hard to get things taken down because there are these third party sites involved. We'll talk a little bit later about some things that you can do to protect clients who've experienced revenge pornography, but again, this is often happening as part of a larger course of conduct. So someone's photos are being posted of them in order to cause them severe emotional distress and someone is following them and someone is calling them all of the time. So all of this is done sort of together as like a course of terror, really, is what this is. So say that you have a client who is experiencing cyber stalking, what relief is going to be available for them? We sort of start with the criminal justice system. I think that's where most people's minds go first and because all 50 states and the federal government have criminalized stalking, this is something that many victims could pursue in criminal court. Now, there are some disadvantages to that. It's controlled by the government. So the government is the one who decides whether or not to go forward. The police have to believe the client, have to think the client is a good victim, a good witness. Prosecutors have to believe that what is happening is truly stalking. They're the ones who make the decisions about whether or not to pursue a case. And oftentimes they can agree to a plea deal that maybe the victim doesn't agree with. But on the plus side, the penalties of criminal cases are obviously very high. It can include jail time, fines, probation, monitoring in a way that you can't get outside of the criminal justice system. Probation can be very intensive and having a probation officer available to monitor a stalker can be really valuable and so there are also benefits to pursuing criminal relief. There's also a variety of civil relief that might be available. So protection orders, sometimes they're called peace orders or anti-stalking orders, depending on what jurisdiction you're in. So those are civil orders that often have criminal penalties to them if they're violated. And that case is controlled by the victim because it's a civil case. So the victim might be the petitioner or the plaintiff in that case and she can decide or he can decide whether or not to move forward in that case. The protections, like I said, are a little more limited, so that is a downside. They can be criminal penalties though if a civil protection order or a peace order or an anti-stalking order is violated and so sometimes obtaining a protection order can be the first step sort of to protect the client and then as soon as it's violated, you have those criminal penalties in place. And it's much easier to show that somebody knew or should have known that their conduct was distressing if your client's already obtained a protection order, right? So maybe then if they continue the behavior, there's a better case for stalking because it's easier to prove the person's intent or what they should have known. And then there are civil lawsuits. So these aren't protection order cases, but they are regular civil lawsuits and some states provide a private right of action for victims of stalking to sue their stalkers for damages. There are some benefits to that. Of course, your client has the opportunity to go to court and be heard. They can be costly, obviously, if you need to hire a lawyer to represent you in a civil case, that can be expensive, but oftentimes you can pursue both punitive and compensatory damages in these kinds of cases. So it is worth considering whether a civil lawsuit will help accomplish your client's goals and get them what they're really looking for. So you've decided that you need to pursue relief for your client. Maybe you are working with the client to help advocate for them in the criminal justice system or maybe you're helping them file a protection order or anti-stalking order case, how do you investigate and collect evidence? And what things should you be thinking about? I think one of the most interesting sort of complications here is getting records from companies like social media companies and social media records in particular can be a little bit difficult and they're a little bit of a bear. So there is federal law that governs here. The Stored Electronic Wire Communications Act is going to govern electronic communications, things like email, but also things like messaging on Facebook or messaging on Instagram. User communications pursuant to this code cannot be turned over absent a law enforcement subpoena. So if you are seeking the actual communications between two people, like the actual messages and the content of those messages, you are not going to be able to get those communications without a law enforcement subpoena, but there is still information that the company can provide to you under the law and that I have sort of looked through some of the communications I've had with companies before, what can they provide? Reasonably available basic subscriber information, but not content. So subscriber information though could include things like a name and a username, an email address and a phone number, the dates that this account was used or logged into and the IP address that was used to log in. So those things can be really important. Those can be very helpful in identifying who's communicating with your client, right? But we do have this additional provision. The requested information has to be indispensable to a case and has to not be within a party's possession and it has to be requested by subpoena. The other thing that they will have to do is they will notify the account holder that someone has sought this information and the account holder has the right to go into court and challenge the subpoena. So there is a limited set of information that you can get in terms of social media records and it can be difficult to get, it can take a lot of time to get and there has to be notice to the person who is using the account. But as I mentioned, you can get names and usernames, so you can get not just the public username, but also the name the person used to sign up for the account. You can get the email address and the phone number they're using to access the account and the dates of login and IP addresses. So all of that can be really helpful in proving identity. Some things to think about, evidence collection in these cases is really essential. These posts can disappear or be removed anytime sort of at the abuser's discretion. So the second you see something, really important to go ahead and collect that evidence. Don't wait. You can have your client take the screenshots themselves or you can have a paralegal take screenshots. I don't recommend taking them yourself because sometimes it's harder to authenticate who saw exactly what at a particular moment in time and maybe the client doesn't remember exactly what happened, but if she can testify she took the screenshot, she can testify that it looked like that at that moment in time, right? So I recommend having your client take the screenshots and send to you or use a paralegal who can testify, "I looked at it at this moment and saw this." Make sure whenever you can, that dates and times are visible in your screenshots. So go ahead and take screenshots at the exact time that you see the message or the message is posted. But sometimes, and this is something that many of us are familiar with, when we first get a message, it'll say sent at 2:22 today, well, today is not gonna be helpful when you need to present this evidence three months down the road in court. Today does not tell the judge three months later when it happens. So if it's possible to go back later and say, "Okay, after 24 hours, "this post now shows the exact date that it was posted." That is helpful. So you may need to go back and take screenshots later in order for the actual date of the messages to be provided in the screenshot. Now, if you can't get those messages later, maybe they've been deleted, it's okay. You still have the screenshot that showed they occurred at one point and your client can testify when they occurred. She can say, "I know that I received "that message on February 23rd, "even though it doesn't say February 23rd on there "because I took the screenshot exactly when I got it" Finally, it's really important, I think, to keep records of other communications that, even if they're not harassing, if they offer context to the communications like identity. There was actually a case that just came down in the District of Columbia that sort of spoke exactly to this. We had a case at the Court of Appeals where there was a protection order in place and the abuser violated that protection order by sending messages to the victim on Facebook and his defense was, "Well, somebody else was using my account "to send those messages." And so the government in those criminal cases, when they pursued contempt, decided to introduce prior voicemails that the defendant had left for the client that talked about the exact same things that the Facebook messages talked about. And so the court said, "Yes, that's incredibly important "to have those other messages." It goes to identity when your defense is, "Well, I didn't send those messages," and then we have evidence that several months earlier you left other communications with the client that said the exact same thing, that is relevant to determining identity and it helped convince the court that it was in fact the defendant who sent those messages. So I think it's important for us to have other communications that sort of, even if they're not harassing in and of themselves, help establish identity. And so oftentimes you may have a client who has thousands of messages back and forth with this person. Maybe they were in a relationship, it's still important to sort of go through those messages even if they're not directly harassing and see what you can find and see what you can glean about someone. Now, in terms of phone records, this is something else we might want to show someone's calling, even if they're calling from a fake number, as I mentioned, they might be using their real phone number attached to an application that is causing the phone number to show up differently. So as long as these records don't reveal communications, they can be subpoenaed. So you can't subpoena the communications, you can't subpoena text messages between the parties, but you could subpoena the phone records that maybe show that there was a text message, or you can subpoena phone records that show there was a phone call. Just be careful when you do subpoena these and interpreting them, official records often come based in what's called UTC Time, which is not necessarily correlated to local time and so just be careful when you're interpreting those records, they might look like the phone calls are occurring at one point, but based on where your client lives, they're actually occurring at a different time. You should also check your local rules on authentication of phone records. I find that a lot of phone companies refuse to provide custodians of record and that is actually also true in the case of social media records. It can be very difficult to get these authenticated because these companies refuse to provide custodians of records outside of their home state. So important to sort of check your local rules, see whether you're allowed to use. They're often certificates that accompany these records that are signed by the custodian of record that say, "We're certifying that these are accurate "and these are business records." And in a number of states, you're permitted to introduce the records based on those certificates. Unfortunately, the District of Columbia does not allow for that so we often have a very hard time in my jurisdiction getting these records in. You can also, and this sort of gets around that problem, take screenshots of your client's phone and your client's call logs instead and the client can authenticate those screenshots. Now, obviously, if you're trying to prove using phone records that someone was faking their phone number but using their actual phone to make the call, that's not going to be helpful to you because your client's call log is going to show the fake number. But if they're using their real number to call your client, you can go ahead and take screenshots of those call logs and your client can authenticate those. In terms of things like smart home abuses, you can actually access those accounts, hopefully your client has access to the account records or the passwords. Just keep in mind, the abuser could try to change the password to the extent that your client is remaining in a home where there are smart home accounts, just advise them to go ahead and change the password so the abuser can't get in. This is also something you wanna make sure you maintain the passwords so that you have access to the account records. So go ahead, check the login records or check the records of what's been happening. Take photos or screenshots of changes that are made. You can also have your client take photos throughout the house. So for example, if you see that there are faucets turning on and off, if you see there are temperature changes on the thermostat, if the lights are flickering on and off, have your client take videos of those things. Those are things that can be really compelling when you get into court when your client clearly is not changing anything and things are changing all by themselves, it's very concerning. So make sure your client is taking videos and documenting all of those things. Now, in terms of electronic tracking, because there's such a variety of different devices that can be used. You never really know what you're gonna be dealing with, but if your client has something like an iPhone or an iPad, this kind of technology is often connected to one account that's being used on multiple devices, so important to go ahead, tell your client to change the password to their account, like their Apple account. You might have them disable Find My iPhone to make sure that no one is using that account to track them. You can also check children's phones and devices for the same reason and it's possible that if the abuser has the password to the child's iCloud account or Apple account they might be using that even if the child is not with them to track the device, so important to change passwords on all these accounts. If you have a client who suspects that they're being monitored physically so that they have a GPS device maybe attached to their car or attached to something else. I find that particularly this is something that happens with vehicles, someone has stuck a GPS device on the bottom of a vehicle where no one will ever look, have the car checked by a mechanic. And that way, if you need to, you can have them testify, did you find anything? If they do find something, you can have a third party there who's sort of unaffiliated with the case to testify credibly that this device was there. Special considerations for AirTags. I have mentioned already that I think AirTags are super problematic. One of the reasons is that if an AirTag is placed say in your client's car or in their bag, if they have an Apple device, Apple has, based on some complaints, set up a notification that will appear on an iPhone that is near an AirTag and so if I have an AirTag that someone slips in my purse and I look at my iPhone, there's gonna be a chime that goes off on my iPhone and my iPhone is going to alert me that there's an AirTag nearby and that's for safety reasons so that you know there's an AirTag nearby. But if your client does not have an iPhone, there is no alert. No alert is going to show up and so in order to figure out if there is an AirTag nearby, they actually have to download a specific application to their phone to search for the AirTags. So if the abuser knows that your client does not have an iPhone or doesn't have an Apple device and knows that they're using another kind of phone, they may know that your client's never gonna be able to find this because they have to download a separate application and run it in order to find the AirTag. Fortunately, if your client does have an iPhone, they should get a notification. If you see a notification like that, tell your client to screenshot it immediately and show that they have received that notification and then your client should be able to find the AirTag if there has been that alert using the iPhone. So when it comes to revenge pornography, there are some additional concerns here, particularly about privacy. Your client may not care as much about evidentiary preservation for court as much as they care about having that content taken down. So you wanna work as quickly as possible here. If your client's primary goal is, "I want this content down right now, "it violates my privacy. "I'm extremely concerned about it." You may be taking sort of minimal steps to preserve the evidence, but go ahead and screenshot all public content that you see and maintain records of when you had the screenshots taken or when those posts were available. And then you can sort of consider for court how things are sort of presented to the judge. We obviously don't wanna violate the client's privacy even more by having people look in open court at private photos of them. So, one thing that I have done before that I've found useful is I have redacted copies of the images for use in court. Obviously court is public so anybody can see what's going on, but then I provide unredacted copies to the court in camera. And oftentimes I do that because revenge pornography statutes often have a specific requirement that the photographs show specific body parts or show nudity and it's hard to prove that if you have redacted images only, so you need to provide unredacted copies to prove to the court, "Hey, this is something that falls "within the revenge pornography statute, "because it really is a nude photo," versus a photo that's been redacted where there's no way to prove necessarily what was shown in the original photo. But using redacted copies in open court can help protect your client's privacy. Now, once you've sort of preserved the images you've taken screenshots or photographs of what was going on then you need to consider how to get those photographs down or those videos down or images down. So most platforms have policies in place that say you can't post pornographic images of people without their knowledge or permission and you can utilize those platform policies to have the content taken down. If these are images that your client created, so either they took the images of themselves or they participated in taking those images, so maybe it was during a consensual sexual encounter between the two parties and your client consented to the making of those images, then the victim counts as a creator of the images and can use copyright law to get additional protection from the posting of these images without consent. The Digital Millennium Copyright Act provides some helpful protection in those circumstances. I don't have time really to discuss all of those things in this presentation, but there are options for clients under copyright law if they have had these images posted of them without their consent. So something important to flag, both preserving those images, presenting them to the court in a way that protects your client's privacy, and also making sure that they are taken out of the public domain as soon as possible, it really is impossible to control images once they're out there and the longer they stay up, the harder it is to take them down because more and more people have had time to circulate them so time is really of the essence in these kinds of cases. This last section is really not a legal need necessarily, but I think it's really important to do safety planning. Anytime you have a client who is a victim of cyber stalking or any form of stalking, because as you know, sort of tying back to the very beginning of this presentation, we know that stalking is a predictor for future additional violence and particularly for homicide. So it's really important to make a safety plan with your client if you know they've been a victim of stalking. This is not something that many lawyers engage in regularly and so you may not know what a safety plan is. Oftentimes you can be referring your client to advocacy services like at a non-profit, you might be able to connect them with the national services, particularly if this is a pattern of domestic violence, there are often domestic violence advocacy services who can serve the client and safety planning is really just coming up with ways to keep the client safe. I find that laying the paper trail with police is really important in these cases and can help the client build safety so if we know that things are happening over the course of time and multiple things are happening, making sure the client is reporting those things to the police so that they know there's a problem. Similarly, obtaining a protection order, sort of laying the framework to show that this person's conduct is unwanted and unwarranted. It can be really important to have the past evidence of those protection orders and to use those protection orders as a shield to the client so that any future conduct can be criminal and can be prosecuted. There are court-based address confidentiality programs, which I think are really important. These are mechanisms within the court to keep your address confidential when you file a case, so if you are filing a protection order case, if you are filing a civil lawsuit, or if you know the government is gonna be pursuing criminal charges against you, making sure court records do not have your address is really important, right? Because these are public records and the abuser is gonna get a copy of them so they may be able to tell where your client lives because your client put their address on the court forms and we don't want that. So there are often programs within the courthouse where, particularly in cases involving domestic violence and stalking, where your client is eligible to keep their address off of their paperwork. Relocation, as we know, one in seven victims of stalking does have to relocate as a result of stalking. There are often crime victims programs in a specific state or jurisdiction that will help fund relocation, but sometimes there aren't. There may be clients who live in housing programs through the federal government, so Section Eight Housing, for example, who have the right under the Violence Against Women Act to request an emergency move. So if your client is being stalked and they need to move into a different housing unit and they're part of a public housing system, they have the right to ask their housing provider to provide them with a new unit on an emergency basis. Some cities also have school district relocation programs. I'm very happy to say the District of Columbia is one of them, where even if you're living in a place where your child is not districted to go to a certain school, you can have their school district changed based on domestic violence or stalking. So this can help shield children from stalkers. You can move them to a new school even if you're not districted to be in that school. Address confidentiality programs that are not part of the court are also something that I've seen arising and I know that the states of Virginia and Maryland and the District of Columbia all have them, hopefully many more states will adopt them. These are programs where victims of domestic violence or stalking can keep their address confidential from all public records, not just the court and this is really important because there are government public records programs that do sell information to third parties. So you could have your address sold to a utility company or sold to an advertising company when you register with the DMV or if you register your utility bill, they may sell that address and it may be public record and it may be possible the abuser can find your address based on the public records. So the address confidentiality programs I think are really essential to helping victims of stalking keep their address safe and secure by taking it out of the public record. They're given a third address where they have all their mail sent and then the government agency will sort of forward their mail. They can register to vote using a private address. They can register at the DMV using that private address. And so these are really important programs that help keep people's address out of the public record and so their abusers can't find them. And finally, once you've helped your client lay the paper trail and once you've helped the client obtain a protection order or obtain a civil lawsuit, if there are violations of a settlement agreement or there are violations of a protection order, report those immediately, because as we know, stalking is dangerous. Continued stalking after you've obtained a judgment is really a sign of escalation and so very important to your client's safety that you go ahead and report those violations as soon as you hear about them, help your client report them and hopefully have the criminal justice system pursue those violations as crimes to really put a stop to what the stalker is doing. I really hope that this presentation has been helpful to you in sort of identifying the issues that can come up in these cases and how to prepare as a legal advocate to represent your client in these cases and I hope that it's been helpful. Thank you so much for joining us.