Cyberstalking: A New Phenomenon

By   /   April 15, 2013 

 

Cyberstalking: A New Phenomenon

United States District Court
District of Maine 

United States v. Sayer1

(decided June 13, 2012)

Sarah R. Gitomer

 

I. Introduction

Shawn Sayer began an intimate relationship with a woman while living in Maine.2  After their relationship ended in January 2006, Sayer began to stalk and harass his former girlfriend.3  Subsequently, the Maine Superior Court convicted Sayer for stalking the victim, and she obtained an order of protection against him in February 2008.4  The Defendant violated the protective order and continued to harass his former girlfriend.5  He escalated the harassment in October 2008 when he posted an advertisement on Craigslist under the “casual encounters” section with a picture of his former girlfriend along with directions to her home and a list of sexual services that would be provided upon arrival.6

Sayer’s former girlfriend fled from Maine to Louisiana and legally changed her name in an attempt to escape him.7  Again, he “created fictitious Internet advertisements and social media profiles using [the victim’s] name and other identifying information.”8  These Internet postings depicted the victim engaging in sexual acts, which she consensually performed during their relationship, and were also posted on several adult-pornography websites.9  Furthermore, Sayer edited the video clips by adding language that invited men to come over to the victim’s new residence in Louisiana for sexual encounters.  He included information such as the victim’s name, current address, and directions to her home.10  As a result, numerous men seeking casual sexual encounters arrived at the victim’s residence in Louisiana.11  This caused the victim to live in fear that these men who arrived at her home might potentially rape and assault her.12

 

II. Procedural History of People v. Sayer

A grand jury indicted Sayer on the charges of cyberstalking and identity theft.13  Law enforcement agents gathered information when they entered Sayer’s driveway and used a laptop to obtain relevant data via wireless signals, installed a live-feed camera in a yard across from Sayer’s house, placed a GPS tracking device on the Defendant’s vehicle, and used subpoenas to obtain information from PayPal, Facebook, MySpace and Yahoo accounts.14  Sayer moved to dismiss the interstate stalking charges based on a variety of constitutional grounds.15  The district court denied the motion to dismiss.16  After the motion to dismiss was denied, Sayer objected to the admission of the evidence gathered by law enforcement and filed a motion to suppress based on a multitude of statutory, constitutional, and Federal Rule issues.17  The district court also denied the Defendant’s motion to suppress the evidence.18

 

III. The Interstate Stalking Statute

With the advancement of technology, individuals are now capable of stalking others who reside in another state from the comfort of personal computers located in their own homes.19  Keeping this technological capability in mind, Congress broadened the interstate stalking statute in 2006 in order to include the relatively new phenomenon of cyberstalking.20  The interstate stalking statute states:

Whoever . . . with the intent . . . to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate, or cause substantial emotional distress to a person in another State or tribal jurisdiction or within the special maritime and territorial jurisdiction of the United States . . . uses the mail, any interactive computer service, or any facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress to that person or places that person in reasonable fear of the death of, or serious bodily injury to [that person, a member of the immediate family . . . or a spouse or intimate partner of that person] . . .  shall be punished . . .21

The amendments broadened the requisite intent from “kill or injure” to include an intent to “harass.”22  Furthermore, the requisite action now includes conduct that may only cause “substantial emotional distress,” a lower standard than “reasonable fear of death or serious bodily injury.”23  Particularly relevant to Sayer, the statute now provides that the use of an “interactive computer service” may be the mechanism used to cause injury to the victim.24

Due to the fact that cyberstalking is a fairly new phenomenon, the United States Supreme Court has yet to directly provide guidance as to where the line is drawn on this issue.  However, numerous circuit and district courts have handled these matters on a case-by-case basis.25  Cyberstalking cases take various forms and transcend many different groups of society, including, but not limited to, gangs,26 religious sects,27 and celebrities.28

For instance, the United States District Court for the District of Maryland in United States v. Cassidy29 held that the postings the defendant made on various blogs and Twitter accounts were protected by the First Amendment.  Based on this reasoning, the defendant was not subject to discipline under the interstate stalking statute.30  Although the content posted by the defendant was offensive and caused severe emotional distress to the victim, such comments were directed at a leader of a religious sect.31  Furthermore, the statements made related to certain religious beliefs as well as the victim’s qualifications as a leader.32   The court found this type of speech to be protected by the Constitution.33

The United States District Court for the Eastern District of New York arrived at the opposite conclusion in United States v. Nagel.34  In Nagel, the defendant was found guilty under the cyberstalking statute when he stalked a female actress through the use of e-mails and social networking sites.35  In an attempt to correspond with the victim, the defendant sent messages through MySpace to what he believed was the actress’s actual account.36  However, the actress did not have a MySpace page and never received any of the messages.37  Eventually, Nagel utilized MySpace in order to correspond with other individuals about the female actress and she became aware such conversations.38  In 2010, Nagel escalated his behavior when he used Facebook to send messages as well as disturbing photographs to both the victim’s brother and daughter under fake profiles.39  The court noted, “[i]nterstate stalking is a serious offense.  It is unacceptable to stalk public figures, either in person or through the use of e-mails and social networking web sites.  Stalking causes significant emotional distress, not just to the direct victims of stalking, but also to the families of the victims . . . .”40

 

IV. Reasoning of the Court in People v. Sayer

Sayer alleged that the cyberstalking statute violated numerous constitutional rights, including the right to free speech.  However, the district court explicitly stated that the conduct of the Defendant did not constitute speech protected by the First Amendment.41  Although Internet communications, such as e-mails and websites, do in fact constitute speech, “identity theft and threats also involve communication, and speech in that sense, and yet they are crimes not protected by the First Amendment.”42  This is supported by the fact that the United States Supreme Court has long recognized that speech used in violation of a valid criminal statute is not protected.43  The district court further noted that everything Sayer allegedly posted on the Internet was “integral to criminal conduct” and “involves no political or religious speech or the promotion of ideas of any sort.”44

In Sayer, the district court concluded that all the elements of the interstate stalking offense under 18 U.S.C. § 2261A(2)(A) were satisfied.45  The court determined that Sayer had the specific intent to harass his former girlfriend who was residing in another state, and he used interstate facilities such as e-mail and websites to foster such harassment.46  His actions caused substantial emotional distress and a reasonable fear of death or serious injury to the victim when unfamiliar men surprisingly arrived at her home for sexual rendezvous after they readily found her contact information on the Internet.47  In the end, the outcome of the district court is not a surprising one, considering Sayer’s persistent efforts to injure and harass the victim after she attempted to evade his conduct by crossing state lines.48

 

 

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Footnotes:

  1. United States v. Sayer, No. 2:11–cr–113–DBH, 2012 WL 2180577 (D. Me. Jun. 13, 2012).
  2. Id. at *5.
  3. Id.
  4. Id.
  5. Id.
  6. Sayer, 2012 WL 2180577, at *5.
  7. Id. at *1.
  8. Id.  The advertisements displayed both the victim’s original name and her new name.  Id. at *5.
  9. Id. at *1.
  10. Sayer, 2012 WL 2180577, at *1.
  11. Id.
  12. Id.
  13. Id.; 18 U.S.C. § 2261A; 18 U.S.C. § 1028.
  14. Sayer, 2012 WL 2180577, at *1-*3, *10.  The Defendant created fake social profiles of the victim on websites including Craigslist, Facebook, and Myspace.  Id. at *3.  The Defendant used approximately forty-nine different Yahoo e-mail accounts linked to the above referenced profiles.  Id. at *18.
  15. United States v. Sayer, No. 2:11–cr–113–DBH, 2012 WL 1714746, at *1 (D. Me. May 15, 2012).
  16. Id. at *10.
  17. Sayer, 2012 WL 2180577, at *1.
  18. Id.
  19. See Joseph C. Merschman, Comment, The Dark Side of the Web: Cyberstalking and the Need for Contemporary Legislation, 24 Harv. Women’s L.J. 255, 257 (2001).
  20. 18 U.S.C. § 2261A.
  21. Id. (emphasis added).  When the cases involve Internet activity, this statute is referred to as the, “cyberstalking statute.”  Sayer, 2012 WL 1714746, at *1.
  22. United States v. Cassidy, 814 F. Supp. 2d 574, 581 (D. Md. 2011), appeal dismissed (Apr. 11, 2012).
  23. Id.
  24. Id.
  25. See e.g., United States v. Grob, 625 F.3d 1209 (9th Cir. 2010); Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007); United States v. Bowker, 372 F.3d 365 (6th Cir. 2004) cert. granted, judgment vacated, 543 U.S. 1182, (2005); Kruska v. Perverted Justice Found. Inc., No. CV08-0054-PHX-SMM, 2008 WL 2705377 (D. Ariz. July 9, 2008).
  26. Labella v. F.B.I., No. 11-CV-0023 NGG LB, 2012 WL 948567 (E.D.N.Y. Mar. 19, 2012).
  27. Cassidy, 814 F. Supp. 2d 574.
  28. United States v. Nagel, No. CR-10-511, 2011 WL 4025715 (E.D.N.Y. Sept. 9, 2011).
  29. 814 F. Supp. 2d 574 (D. Md. 2011).
  30. Id. at 592.
  31. Id. at 583.
  32. Id. at 586.
  33. Id.
  34. 2011 WL 4025715 (E.D.N.Y. Sept. 9, 2011).
  35. Id. at *2.
  36. Id.
  37. Id.
  38. Id. Nagel wrote to one person on MySpace, “I literally fantasize in my day and night dreams of sneaking up behind [the victim] while she’s sitting down at the computer . . . I want to open her eyes, so I can look into hers and make love.”  Nagel, 2011 WL 4025715 at *2.  He also frequently used the alias “Chaz Rose” when he sent these messages.  Id.
  39. Id. at *3-*4.  Nagal posted a photograph of the victim’s daughter with a cockroach on her face and a bubble next to her mouth with the words, “I’m ugly!”  Id. at *3.  He also posted a picture of the victim’s brother with a hand drawn phallic symbol superimposed on it.  Id. at *4.
  40. Nagel, 2011 WL 4025715 at *2.
  41. Sayer, 2012 WL 1714746, at *2.
  42. Id.
  43. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949).
  44. Sayer, 2012 WL 1714746, at *3.
  45. Sayer, 2012 WL 1714746, at *9.
  46. Id.
  47. Sayer, 2012 WL 2180577, at *1.
  48. Id. at *20.