Inspecting the Proverbial Fork (Part 2 of 3)

In recommending legal remedies, you may note that I said a blogger has the building blocks of a case if they receive a bothersome threat. I felt reluctant to say that bloggers have absolute awesome odds of winning every legal case ever because each legal provision has its elements. If those elements are not satisfied, then the chances of prevailing in court (or even getting to court) are slim.

Let's take the provisions of cyberstalking as an example. To successfully bring a cyberstalking suit, the following must be proven:

(1) the defendant intentionally used the mail or any facility of interstate or foreign commerce;

(2) the defendant engaged in a course of conduct with the intent to place the victim in reasonable fear of death of, or serious bodily injury to, herself, her spouse or intimate partner, or a member of her immediate family; and

(3) the defendant’s course of conduct actually placed the victim in reasonable fear of death of, or serious bodily injury to, herself.

Now, if I'm learning my lawyering skills properly, it's our job to make sure we can prove every single facet of those elements true for the satisfaction of the court. We have to break down each element into its component parts and work on resolving the issues. So, for the first element, there are three things that we must find to satisfy it -- that the defendant in the case did the alleged behavior, that the behavior committed was intentionally done, and that the method used for doing it was "mail or any facility of interstate or foreign commerce." If it can be established that someone else used the defendant's computer to send the threatening message, there'd be a problem. If it could be established somehow that the defendant did not intend to use the device on which they sent the offending message, there'd be a problem. (And trust me, there are legal requirements for intent that sometimes defy common sense, and a good defense lawyer bills you highly to find them and to use them.) If the offending message was somehow not sent on the methods listed, there'd be a problem. So lawyers comb through each element, looking through little loopholes like those to worm through victories for clients on either side of the "v." in a case. It is not easy, and television makes it look easy, though the courtroom speeches and magical eloquence of actors inspire quite a few litigators, I'm sure.

But perhaps the trickiest aspect to prove out of all of the aspects listed up there is "reasonable fear." American legal requirements are fraught with these ideas and concepts of what a "reasonable" person would do and feel. The reasonable person standard has evolved over time from being a reasonable white male standard to being a more inclusive reasonable American citizen standard. Historically, the reasonable man standard excluded all women and males of color for a very long time. It excluded people with mental disabilities and children. As the needs and the values of each of these groups integrated into the American social fabric, the concept of what is reasonable to an American citizen has changed slightly. Plus, it's a bit fearful for any marginalized group to realize that mainstream society -- the society that feels almost at home when it's excluding or ridiculing someone on the margins of opportunity -- considers itself a beacon of reasonable progress.

However, I planned to leave a more in-depth analysis of the "reasonable person" standard to the third part of this analysis; so let's return to element dissection. By now, I hope you've recognized why I said that having the threat and being scared enough out of your wits to report it are building blocks for a case. And now, that advice probably does not sound very reassuring at all when you see what lawyers quibble over in establishing elements. So I have some general questions you should ask yourself before proceeding to the authorities.

1. Is the message or comment threatening violence towards you specifically? There's a key difference between someone saying they want to kill or to seriously harm you and someone saying they want to kill or to seriously harm anyone who looks like you/within one of your identity groups. So a threat reading, "Fido the female dog, I hope you choke on a bone and die" has more legal consequences and weight than "All you b****es choke on bones and die."
2. Is the message or comment appearing with some frequency? Once again, there's a difference between someone sending you a threat once and then disappearing off into the abyss forever and someone regularly sending you the same or similar threats. So if one day, you receive, "Fido the female dog, I hope you choke on a bone and die," and the next day you get, "Fido the female dog, I hope you like arsenic on your chew toys, you mutt," you should start documenting the threats and speak to someone about them. Try to keep an eye out for consistency.
3. Is the message or comment coming from the same source or different sources? If they are coming from different sources, are they happening in concert? If one person consistently sends you messages threatening violence on your person, document the threats and the source and go to the cops. If multiple people over time send you isolated threats that have no relation with each other, then a legal remedy would be difficult for you. No doubt you should still remain alert, but it would be difficult for you to establish a case. If multiple people over time send you similar threats within a limited time window, it could mean that they're working together or you've written something that pissed off a lot of people. If it is the former, it may be possible to trace the source to some sort of forum or chat room. If you can find the tools to trace that, document that and go to the cops to see if you can bring charges against the webmaster or if you can file a lawsuit.
4. Can you pinpoint a source? Technology is making this easier and harder. With the stat counters and IP trackers we have maskers and IP scramblers. Some people, however, are stupid. I mentioned that in the first part. They think hiding behind a psuedonym or sending threats via work e-mail is enough. So if you can track them down and pinpoint who they are after some correspondence, you're in business, baby! If not, if they're substantially harmful, you can seek a legal remedy and have the internet service providers do some investigating for you. But that doesn't happen easily because of privacy protection, due process protection, and First Amendment protection.
5. Are they really bothering you? I know this question seems really insensitive. But honestly, while it's fun sticking it to some jerks who are getting on your last nerve, you should make sure you're bringing legal charges and suits for the right reasons. If there's one group of people who hate having time wasted, it's the judge and law enforcement clan. So if you make it all the way to the courtroom during trial, and you suddenly say, "Aww, man, just effin' with ya; now leave me alone!" Well...yeah, expect a little red mark next to your name and resentment from that particular judge. Your lawyers will be miffed, but that'll hopefully last until you finish paying your bill.

Now, a certain person (I'll call him Mowgli) asked about alternatives -- both legal and not-so-legal -- to dealing with online threats. For the not-so-legal alternatives, my best advice as an internet user is whatever you do, don't mess up and don't get caught. For the legal alternatives that stray outside of the courtroom and law enforcement machine, there are many mechanisms you can take to protect yourself that people mentioned in the comments.

1. Better software, as suggested by Heraclitus. Blogs often have blacklists; e-mail addresses often have spam blockers. If this is just your random internet troll, block 'em.
2. Fight back, depending on the character of the message. If some jerk is getting off scaring the crap out of you, but all they're sending are messages saying, "I know your name, fap fap fap, I know who you are, fap fap fap," call them on their bluff. "What is my name?" "I know your name, too; bugger off." Don't do the horror movie tactic and let them get the best of you. "Who are you? What do you want? Why are you bothering me? I'm going to run upstairs in my bedroom and put the covers over my head now that I know you're in the house --" No. Don't do that. This is my way of yelling, "FIND THE GUN OR GET OUT OF THE HOUSE." If it gets to that point. Your common sense will dictate when getting a little confrontational is appropriate. And don't use the gun if you don't know how to aim. Y'all understand these metaphors, right? I hope so 'cause I can't think of any more.
3. Superexposure, as suggested by belledame222. What am I going to say here that I've said before? Ah, yes -- some people are really stupid. The internet farce of anonymity functions as a proverbial fig leaf over a person's identity in some cases. Sometimes, they send e-mails from school addresses with their full names. Sometimes, they threaten you on work computers. You can use this information to your advantage. Let's face it -- if someone is going to have the nuts to try to threaten you, and they give you ALLLLLL their biznass, why are you protecting their privacy and safety? Did they care about yours when they tried to intimidate you? Show that information off. They turned it over to you, after all. Now, if they start crying and foaming at the mouth because your internet posse seeks revenge with the quickness, then they brought it on themselves, didn't they? And in the meantime, you feel like an internet rebel. Get your sexy on. Go ahead, be grown with it.
4. Limited exposure. Kind of like superexposure. You have the same information, but you don't feel quite right posting all that info. You feel a little sorry for the jerk, but at the same time, you worry about someone who is such a troll receiving no reprimands for what they do. So, if they work at a company, and you know what it is through the info on the e-mail, do a little research and forward it to the personnel department or person in charge. If it's a school e-mail, forward it to the dean. Leave a note about the nature of the threat or send the exact wording with all the info, and ask them to handle the punishment. Often work policies limit internet access extremely, and damned near everyone breaks protocol. But if someone's using that time to threaten you, that's completely different from playing Power Sudoku for six hours.
5. Make some poor sap an example. This solution is kinda mean, but so are the best solutions. You get a ripe little troll, calling you all sorts of mean things, using his flowery little imagination to cut you up and then put you back together and then cut you up again with liquids and fluids flowing out of areas that typically don't have fluids coming out of them. Prince Charming leaves information. You do all the remedies on this one pitiful creature. Then you do some light tracking. Mr. Charming got fired. Mr. Charming got spammed. Mr. Charming has no girlfriend/boyfriend/friends because she/he/they saw what he wrote and felt totally repulsed. Mr. Charming got kicked by a 7-year-old while its momma cheered after reading what Mr. Charming said on Craigslist. Good Morning America does a show that says, "Don't raise your children to be MR. CHARMING!!!" Dateline profiles Mr. Charming like he's the beast of Revelation. God says Mr. Charming IS the new beast of Revelation. You probably won't get much hate mail after that point.

So, internet bloggerkin, know how to protect yourselves and look for signs. And if you go outside of the legal system, please don't get caught. Don't wants that on mah conscience, kthx.

Part 3 will evaluate what reasonable person standards mean for bloggers who are members of marginalized groups, and it will discuss the dormant reactions to smaller blogs experiencing similar threats of violence and endangerment.

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