Criminal Justice Insider

Let us start this blog post with a hypothetical. You are the President of WidgetCo, a successful New York-based company in the emerging growth industry of widget manufacturing. Under your leadership, WidgetCo maintains a robust internet presence with a website and various social media channels. In fact, WidgetCo’s internet presence has been so successful that WidgetCo has submitted large bids to several new potential customers.

Unfortunately, WidgetCo’s success has also garnered negative attention. Officers and employees of WidgetCo have begun to receive harassing emails from various anonymous web-based email accounts. Neither the email addresses nor the emails themselves give any clues as to the identity of the sender. These emails have accused WidgetCo of fraud and have threatened to bankrupt the company. Moreover, some of the potential customers have received similar missives about WidgetCo. This has affected WidgetCo’s ability to close potential deals. As far as you are aware, WidgetCo is an upstanding and socially responsible company and that the content of the emails is entirely false. Understandably, you are upset about the unjustified cyber campaign against WidgetCo.

What can the state and federal criminal justice systems do to help you?

The answer may surprise and dismay you. At the state level, New York does not presently have a cyberbullying or cyber-harassment law in effect. Prior attempts to implement local cyberbullying laws have been blocked by the courts on First Amendment grounds. See e.g. People v. Marquan M., 24 N.Y.3d 1 (2014).

Accordingly, harassing emails are dealt with under the general harassment statutes codified at New York Penal Law Article 240. So long as the offending email does not threaten physical harm to the recipient, it will likely be prosecuted as Harassment in the Second Degree (PL Sec. 240.26), a violation, the lowest level of offense under the penal law. If the email threatens bodily harm or property damage, it could be prosecuted as Aggravated Harassment in the Second Degree (PL. Sec. 240.30, an A misdemeanor. A conviction under either of these sections is unlikely to result in imprisonment or a significant monetary penalty.

The involvement of law enforcement is further complicated because the offending emails are not readily linked to an actual person. Anyone can open up an email account with a web-based service without having to provide or verify their identity. Law enforcement has limited investigatory powers to compel a witness, such as a web-based email service, to reveal what limited information it has about the owner of an email account.

The two primary means available to the police to discover information about an anonymous email account are the execution of a search warrant or the issuance of a grand jury subpoena. Misdemeanors and violations are not required to be presented to a grand jury and can be indicted on a prosecutor’s information. Grand jury subpoenas seeking information about low level offenses are very rare. Similarly, it is infrequent that law enforcement will take the intensive and highly-scrutinized step of applying for a search warrant for conduct classified as a misdemeanor or violation. Moreover, law enforcement would have to go to both the email provider to find the raw data and the internet service provider to translate that data into an identity, adding another obstacle to a laborious process.

Federal statutes provide little assistance. The Computer Fraud and Abuse Act (18 U.S.C. 1030), the Wiretap Act (18 U.S.C. 2511), and other such federal statutes generally require unauthorized access, information theft, extortion or fraud as an element of the conduct outlawed by these statutes. The mere use of email to harass without intercepting a communication or obtaining something of value is not criminalized under these statutes. Even though these emails are false and can cause palpable financial damage, unless there is an element of unauthorized access, identity theft or extortion, the federal law enforcement system is unable to help.

That does not mean you are without recourse. There are numerous civil causes of action. For example, defamation, tortious interference with business relations, and prima facietort, which may allow you to discover the identity of the anonymous emailer and sue them. However, the federal and state law enforcement systems will likely be of little aid. We are hopeful that as cyberbullying and online harassment grow as a problem, new statutes that can survive constitutional scrutiny will be enacted at both the state and federal level.

For more information on the topic discussed, contact:

• Adam M. Felsenstein  |  felsenstein@thsh.com  |  212-508-7533