Cyberstalking. An individual may be convicted of cyberstalking by three distinct means. If, with the intent to harass, intimidate, torment, or embarrass any other person, an individual makes an electronic communication to that person or a third party (1) using any lewd, lascivious, indecent, or obscene words, images, or language, or suggesting the commission of any lewd or lascivious act; (2) anonymously or repeatedly; or (3) threatening to inflict injury on the person or property of the person contacted or any member of his or her household, that individual is guilty of the gross misdemeanor crime of cyberstalking.
If the perpetrator has previously been convicted of the crime of harassment with the same victim, or a member of the victim's family or household, or any person specifically named in a no-contact order or no-harassment order in this or any other state, the crime of cyberstalking is a class C felony. If the perpetrator threatens to kill the person threatened or any other person, the crime of cyberstalking is likewise a class C felony.
First Amendment. Under the First Amendment to the United States Constitution, Congress, and state legislatures by way of the Fourteenth Amendment, are prohibited from restricting the rights of individuals to speak freely. While the First Amendment broadly allows individuals to express themselves without fear of reprisal from the state, over the years the United State Supreme Court has carved out certain well-defined and narrowly limited classes of speech that remain unprotected. Obscenity, defamation, fraud, incitement, true threats, and speech integral to criminal conduct remain classes of speech not protected under the First Amendment.
Rynearson v. Ferguson. In February of 2019, the United States District Court for the Western District of Washington heard the case of Rynearson v. Ferguson. The plaintiff in that case asked the court to find cyberstalking by way of anonymous or repeated communication unconstitutional under the First Amendment, arguing the statute, as written, was overbroad and prohibited protected forms of speech.
The court found the statute unconstitutional because it criminalizes a large range of non-obscene, non-threatening speech, based solely on purported bad intent and repetition or anonymity. The court reasoned that under this statute, public criticisms of public figures and public officials could be subject to criminal prosecution and punishment if they are seen as intended to persistently vex or annoy those public figures, or to embarrass them.
Cyber Harassment. The current crime of cyberstalking is renamed cyber harassment. The intent element of the crime is limited to the intent to harass or intimidate. In addition to the current factors that raise this crime from a gross misdemeanor to a class C felony, the following likewise raise the crime to a class C felony:
Criminal justice participants include any federal, state, or local law enforcement agency employee, prosecuting attorney, or deputy prosecuting attorney; staff member of any adult or juvenile corrections institution or local adult or juvenile detention facility; community corrections, probation, or parole officer; member of the indeterminate sentence review board; advocate from a crime victim or witness program; or defense attorney.
As the crime of cyber harassment relates to criminal justice participants, the fear from the threat must be a fear a reasonable criminal justice participant would have under all the circumstances. Without the present and future ability to carry out the threat, threatening words alone do not constitute cyber harassment.
Cyberstalking. The crime of cyberstalking is created. A person commits the gross misdemeanor crime of cyberstalking if they:
The crime of cyberstalking is elevated to a class C felony if any of the following apply:
An electronic tracking device means an electronic device that permits a person to remotely determine or monitor the position and movement of another person, vehicle, device, or other personal possession. Electronic device includes computer code or other digital instructions that, once installed on a digital device, allows a person to remotely track the position of that device.
It is not a defense to the crime of cyberstalking that the perpetrator was not given actual notice that the person does not want to be contacted or monitored, nor is it a defense that the perpetrator did not intend to frighten, intimidate, or harass the person.
The provisions of this section do not apply to the following: