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. A person is guilty of the crime of cyber harassment if the person, with the intent to harass or intimidate another, makes an electronic communication to that person, or any other person, and the communication:
The communication must be such that would cause a reasonable person, with knowledge of the sender's history, to suffer emotional distress or to fear for the safety of the person threatened, or such that the communication reasonably caused the threatened person to suffer emotional distress or fear for the threatened person's safety.
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.
The laws of Washington state are updated to reflect the change in name of the crime of "cyberstalking" to "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:
Address Confidentiality program. The statutory address confidentiality program, which allows those who are the target of threats or harassment to petition the secretary of state to have an address be designated as the person's address, is amended to allow those who are victims of cyber harassment to apply to the address confidentiality program.
The committee recommended a different version of the bill than what was heard. PRO: This is an ever-evolving area of prosecution. The current cyberstalking statute is based on the telephone harassment statute and does not actually address cyberstalking. True cyberstalking is not addressed by any current statute. Likewise, placing the cyberstalking statute under the malicious mischief section of Title 9, as it currently is, diminishes its importance and the impact this crime has in the victims. Due to the language of the current statute, prosecutors have only pursued these prosecution cautiously. Changing the name of the current cyberstalking crime to cyber harassment calls the crime what it actually is. This bill removes unconstitutional language from the statute, moves the crime to the cyber crimes section of Title 9 where it belongs, brings the law in line with other harassment laws, and creates a brand new section targeting true cyberstalking. As new technologies have become more available, stalking by electronic means has increased. Often these perpetrators are domestic violence perpetrators tracking their victims, and the tools prosecutors have to pursue these individuals are severely limited. This bill provides a significant tool to prosecutors to combat the stalkers of today and of the future.
OTHER: While this bill does make the language of the current cyberstalking statute better, even with the changes this bill contains there are still First Amendment concerns.