Academic journal article Santa Clara High Technology Law Journal

Cyberstalking: Can Communication Via the Internet Constitute a Credible Threat and Should an Internet Service Provider Be Liable If It Does?

Academic journal article Santa Clara High Technology Law Journal

Cyberstalking: Can Communication Via the Internet Constitute a Credible Threat and Should an Internet Service Provider Be Liable If It Does?

Article excerpt

I. INTRODUCTION

You are in the privacy of your home, relaxing after a long day at work. Suddenly you hear a knock at the door. "Who is it?" you ask. The man behind the door responds by saying he has a package for you. You see no need to be alarmed, so you slowly open the door, curious about the contents of the package. As soon as you open the door, the man pushes you to the floor, starts ripping off your clothes and rapes you. According to this guy, you asked for it. "Honestly," he says, "I was following the directions you posted on the Internet!"

While such a scenario seems far-fetched, it happens more often than we think. In fact, this story is based on a real case in California. (1) For months, several men visited a 28-year old California woman and attempted to carry out the above scenario. (2) The perpetrators all later claimed they had seen her name, phone number and address on the Internet prompting them to go to her home seeking sexual relations. (3) Six men came to the victim's apartment. (4) Some claimed they had seen "steamy e-mails" sent in her name. (5) One message read: "Tell me you have a package, and when I open my door, attack me. Tie me, gag me, rip off my clothes and go for it. I'll struggle a little just for the fun of it...." (6)

The Internet postings were later discovered to have originated from a man whom the victim had previously met and later rejected. (7) The man, later identified as Gary S. Dellapenta, was apprehended and given the maximum sentence for the crime. (8) Ironically, Dellapenta's victim did not have Internet access in her home. (9) For sometime, she did not even know why the men were targeting her. (10) Eventually, the victim's father contacted her stalker posing as someone interested in the elaborate rape fantasy. (11) This action, along with the help of a police investigation, led to Dellapenta's arrest. (12) In April 1999 Dellapenta pled guilty to three counts of solicitation for sexual assault and one count of stalking. (13) The judge sentenced him to six years in state prison, stating "to give him anything less is insufficient to protect society." (14)

In another real-life situation, a woman found a message posted on the Internet, listing her home phone number, her address and a message that read "[she] was available for sex anytime of the day or night." (15) After being plagued by numerous phone calls, the woman contacted the local, county and state authorities, as well as the FBI asking for help. (16) The woman testified that "[t]hey all looked at me and said, '[w]e have no idea how to help you.'" (17)

In another case, Kevin Massey, who stalked a founder of a Dallas Internet Service Provider (ISP), actually called himself the 'Cyberstalker' and lobbied to be a guest on Howard Stern's radio show. (18)

The U.S. Department of Justice (DOJ) defines stalking as: "harassing or threatening behavior that an individual engages in repeatedly, such as following a person, appearing at a person's home or place of business, making harassing phone calls, leaving written messages or objects, or vandalizing a person's property." (19) Stalking is not a new problem; the Internet has simply provided a new and more anonymous medium for the same old crime. (20) This new crime has been aptly labeled cyberstalking and has been defined as "use of the Internet, e-mail or other electronic communications devices to stalk another person through threatening behavior." (21)

Using new technologies, stalkers can now reach victims in their homes, a place where one usually feels safe. Even more disturbing, cyberstalkers can stalk entirely from the comfort of their own home. (22) Due to the ease of electronic communication, users may feel that sending another user a potentially threatening e-mail is harmless compared to traditional stalking. For example, an Internet user may send a threatening e-mail to another user, not realizing the e-mail could eventually end up in a public forum. …

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