Background: Cyberstalking. A person commits the crime of cyberstalking if they make an electronic communication to another person or a third party with the intent to harass, intimidate, torment, or embarrass another person, and under circumstances not constituting telephone harassment. To qualify as cyberstalking, the communication must:

use lewd, lascivious, indecent, or obscene words, images or language, or suggest the commission of any lewd or lascivious acts;
be made anonymously or repeatedly whether or not conversation occurs; or
threaten to inflict injury on the person or property of the person called or any member of their family or household.

An electronic communication for purposes of cyberstalking is the transmission of information by wire, radio, optical cable, electromagnetic, or other similar means. This includes, but is not limited to, electronic mail, Internet-based communications, pager services, and text messaging.

Cyberstalking is a gross misdemeanor unless the case involves a threat of death or the defendant has previously been convicted of harassment against the same victim, a member of the victim's family, or anyone named in a no-contact or no-harassment order, in which case it is a class C felony.

Stalking. A person commits the crime of stalking if they intentionally and repeatedly harass or repeatedly follow another person, and as a result place the other person in reasonable fear that the stalker intends to injure their person or property, or the person or property of another person. The stalker must either intend to frighten, intimidate, or harass the other person, or must know or reasonably should know that the person is afraid, intimidated, or harassed even if the stalker does not intend to place the person in fear or intimidate or harass the person. Attempts to contact or follow a person after being given actual notice that the person does not want to be contacted or followed is prima facie evidence that the stalker intends to intimidate or harass the person. Contact includes sending an electronic communication.

Stalking is generally a gross misdemeanor; however, it is punishable as a class B felony under certain circumstances. Stalking is a class B felony if:

the stalker has previously been convicted of a crime of harassment involving the same victim, a member of the victim's family or household, or a person named in a protective order;
the stalking violates any protective order protecting the person being stalked;
the stalker has previously been convicted of stalking;
the stalker was armed with a deadly weapon;
the stalking was associated with the victim's performance of certain official duties; or
the stalking was intended to interfere with a witness.

Summary of Bill: Cyberstalking. The crime of cyberstalking is renamed cyber harassment, and changes are made to narrow the types of behavior that qualify under the offense. Intent to embarrass another person is removed from the possible outcomes the defendant may intend to bring about to commit the crime. The offense may only be committed by means of communication through a third party in cases involving a threat of harm to person or property, and it is an affirmative defense if an electronic communication made to a third party was not intended to be disseminated. If the offense is committed on other grounds not involving the threat of harm to person or property, the defendant must have known or should have known that the recipient did not want to receive the electronic communication.

The list of circumstances in which the offense is elevated to a felony is modified. Rather than elevating the offense to a felony in circumstances in which the defendant has had a previous conviction for harassment against any person named in a no-contact or no harassment order, the offense is a felony when the behavior violates a protective order protecting the victim.

Stalking. Placing a person under electronic surveillance is included in the types of conduct that may support a stalking offense. "Electronic surveillance" means using tracking or spyware technology to track or monitor another person. "Tracking or spyware technology" is defined as computer software that aids in gathering information about a person without that person's knowledge and that may send the information to another person or entity without the person's consent, or that asserts control over a computer or device without the person's knowledge or consent. Electronic surveillance does not include lawful monitoring of, or interaction with, a subscriber's Internet or other network connection or service, or a computer, by a telecommunications carrier or other types of listed service providers.

The intent element required in a stalking offense may be satisfied by the defendant's intent to unlawfully surveil another person. "Unlawful surveillance" is defined as keeping a person or place under surveillance for no lawful purpose as a means of tracking, following, or harassing a person. Lawful surveillance as part of a criminal investigation conducted by a law enforcement agency is not unlawful surveillance. Attempts to electronically surveil a person after receiving actual notice the person does not want to be contacted, followed, or surveilled, is prima facie evidence of intent to intimidate or harass.

The list of circumstances under which stalking is raised to a felony is expanded to include circumstances in which the stalker has threatened to kill the victim or another person.

"Electronic communication" is defined for purposes of stalking to mirror the definition applicable to cyber harassment.