ESPN Personality Endorses Law That Would Make Cyberstalking a Federal Crime

August 2, 2010 by David S. Seltzer

As an Orlando cyber crime criminal defense attorney, I was interested to see articles last week about a proposed new federal law. The STALKERS Act would make cyber-stalking a federal crime, and expand the definition of “cyberstalking” to include acts that the victim is not aware of. Cyberstalking is currently a crime in most states, including Florida, and those states typically require victims to feel reasonable fear of the perpetrator in order to trigger an arrest and prosecution. Under the proposed law, introduced by Democrats Loretta Sanchez in the house and Amy Klobuchar in the Senate, the threshold is lower -- “behavior that a reasonable, impartial observer would recognize as stalking,” according to an article Sanchez wrote for The Hill. The bill would also increase penalties for stalking children, the elderly or anyone with a protective order. It has already passed the House.

The bill was endorsed in the press by Erin Andrews, a reporter for sports news network ESPN. Andrews was the victim of stalking in 2009, when 47-year-old Michael David Barrett took videos of her through the peepholes or keyholes of various hotel room doors. In the videos, Andrews is naked or partially clothed and curling her hair. They were posted on the Internet, and Barrett reportedly tried to sell related photographs to celebrity website TMZ.com. He has since been convicted of interstate stalking and is serving a 30-month sentence. In support of the STALKERS Act, Andrews said she was disappointed that Barrett will serve only two and a half years. Sanchez’s article notes that Barrett’s electronic monitoring does not meet the current federal definition of stalking, which is one reason she’s pushing the STALKERS Act. Klobuchar noted that the law is not as sophisticated as online criminals, in an article saying 25% of stalking cases happen online.

As a West Palm Beach cyber crime criminal defense lawyer, I approve of expanding the definition of stalking to include cyberstalking. As I noted, most states already have cyberstalking laws, and including electronic harassment would simply help to update the law to fit the way people actually use technology in the 21st century. The federal law may be behind on this issue because federal criminal law applies only to conduct that crosses state lines or takes place in specific federal areas, and most stalking is local. However, I have some concerns about application of the STALKERS Act to conduct that the victim does not notice. The relevant language says the law applies when the conduct “would reasonably be expected to cause emotional distress.” Who judges this? If the victim cannot because he or she is unaware of the conduct, I suspect law enforcement decides whether it’s distressing. This could be a problem in any case where law enforcement officers might want to overreach, such as when they want to “get” the defendant for other reasons.

Such a vague definition of a crime invites law enforcement abuses and could create a crime out of victimless, harmless behavior. Here in Florida, the victim of stalking must feel actual emotional distress, and cyberstalking is defined as electronic communications that cause that emotional distress but serve no legitimate purpose. Barrett’s behavior toward Andrews would not meet this definition, and in that sense, Florida law leaves a gap. However, as a Miami cyber crime criminal defense attorney, I suspect that videotaping a young woman naked through a hotel room could meet the definition of a crime in other ways, such as by violating wiretap laws. I hope that federal legislators consider this when they consider the well-meaning STALKERS Act and its possible unintended consequences.