In general, I agree with you and Professor Kerr. There is no question that this case involves despicable conduct that should not go unpunished. It is an open question, however, as to how the law should punish this kind of conduct. I believe that the government in this case is wrong in looking to 18 U.S.C. § 1030 to ground its legal theory. As Professor Kerr notes in his post, this statutory section clearly deals with cyberfraud involving compromised information that leads to a loss of value and not the sort of harassment/cyberbulling we saw in this case. (Note the statute’s persistent reference to “information of value.”)

If § 1030 does not help the prosecution here, then where should it look? Tim, you have rightly mentioned a tort law theory known as “intentional infliction of emotional distress” (IIED). Generally, the legal standard in this area is difficult to meet; conduct that falls within the definition of IIED is that which may be characterized as “outrageous” or “beyond the bounds of human decency.” Here, the facts of the case are so damning (defendant used an online pseudonym to defraud and harass victim, telling victim at one point that the world would be better off without her) that I would think the IIED standard would be satisfied.

Given that the prosecution likely has a viable theory for IIED, how should we proceed as a policy matter? First, as the prosecution suggests, we could read into § 1030 a cause of action for cyberbullying, effectively linking up IIED claims (and likely cyberbullying that falls short of IIED) with § 1030 claims. As you and Professor Kerr have argued, this is probably the wrong path to pursue, as it would effectively re-write a statute well beyond its intended scope, potentially creating a criminal cause of action for breach of online terms of use in the context of harassment. Second, we could simply require prosecutors to rely on traditional tort law theories such as IIED. This is the simplest solution, but it may not go far enough in addressing the very real problem of cyberbullying. The Internet has facilitated the speed, geographic scope, and anonymity of all manners of transactions. The result has been both positive (commerce has expanded rapidly and knowledge has been disseminated more freely) and negative (cases such as this one are, sadly, becoming increasingly common).

Perhaps, then, new legislation is necessary to “beef up” the punishment for cyberbullying beyond what tort law already provides. This possibility is fraught with difficult questions. For instance, what, exactly should constitute cyberbullying? Would the statute contain is own definition (necessitating some very difficult line-drawing) or would it rely more heavily on common law, non-Internet-related tort concepts? What role would websites terms of service play? Finally, what are the risks and benefits with the legislative approaches taken in the United Kingdom and in Ireland?

Related question (to which Tim previously alluded): what about the integrity of the Internet in this context?

Daniel Corbett