Nicole Black, The Daily Record Newswire
As the author of books on both legal technology and substantive New York criminal law, I’m always fascinated by cases wherein the two topics intersect. This is because the rapid changes in technology affect our society in so many ways, including how people communicate both online and off.
Of course, problems can then arise if said communications are deemed unwelcome, and courts are left to grapple with issues of whether 21st century communication methods can result in the commission of crimes often drafted by 20th century legislators.
Such was the case in People v. Selinger, 48 Misc. 3d 1218(A) (N.Y.Crim.Ct. 2015), a decision handed down just last month. At issue in Selinger was whether the defendant’s online communications violated New York’s stalking statute as codified in Penal Law § 120.45(1), which provides:
A person is guilty of stalking in the fourth degree under Penal Law § 120.45(1) when she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct ... is likely to cause reasonable fear of material harm to the physical health, safety or property of such person, a member of such person’s immediate family or a third party with whom such person is acquainted.
The defendant was accused of engaging in behavior that the court ultimately referred to as “Internet pranks.” According to the accusatory instrument, she repeatedly harassed the complainant, her half-sister, over the Internet by: 1) posting the complainant’s photo on Instagram along with her phone number and the suggestion that she was seeking sexual partners (she received one phone call as a result of the post), 2) RSVP’d to the complainant’s wedding via an online site as herself (even though she wasn’t invited), her dog and her deceased father, and 3) named a cockroach after the complainant on a wildlife conservation website and the complainant received an email notification regarding said naming.
The court explained that in order for the defendant’s conduct to violate the stalking statute, she was required to have either actual or constructive knowledge that her behavior would “cause the victim to fear ‘material harm’ to one of the specified interests” set forth in the statute.
After reviewing the allegations set forth in the accusatory instrument, the court noted that the complainant’s alleged actions contained “neither an implicit nor an explicit threat of physical harm to the complainant, and there are no background facts pled that might place the defendant’s behavior in a different context.”
The court deemed the complainant’s actions to be Internet pranks, explaining that “while clearly calculated to annoy her sister and cause her mental distress, do not reflect the knowledge require by this section. Obnoxious but non-threatening behavior is not, by itself, enough … Defendant’s behavior was the Internet equivalent of having pizza delivered to an enemy, albeit over and over and over again. The court does not doubt that the complainant experienced fear for her personal safety. But, as nettlesome the defendant’s behavior was, it would not be reasonable, absent other facts not pled, to conclude that defendant knew, either actually or constructively, that the complainant would perceive the complainant’s behavior as threatening.”
As such, the court dismissed the stalking count of the accusatory instrument. In this case, I agree with the court’s decision; the actions taken by the complainant did appear to constitute harmless pranks.
That being said, the Internet provides a new, very cost-effective medium — both in terms of time and money — for those with malicious intent toward another. Context can be incredibly important when analyzing allegations of Internet stalking, something that is oftentimes difficult to convey in a misdemeanor accusatory instrument.
For that reason I would hope that judges err on the side of caution with most cases like this and allow a jury the opportunity to hear and assess testimony regarding the circumstances surrounding the alleged stalking in order to determine whether the alleged behavior was intended to cause fear as delineated in the statute.
The Internet is a wonderful technology that offers many benefits and conveniences. But it also allows those with less than benevolent intent the ability to, with little effort and in very subtle ways, make the lives of others miserable. So, if nothing else, I would suggest that it is wise to proceed with caution when it comes to crimes allegedly committed via the information highway.
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Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book “Cloud Computing for Lawyers,” coauthors the ABA book “Social Media for Lawyers: the Next Frontier,” and co-authors “Criminal Law in New York,” a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@mycase.com
