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Proposed cyberbullying law is unnecessary

Stacked3This week's Daily Record column is entitled "Proposed cyberbullying law is unnecessary."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Proposed cyberbullying law is unnecessary

Recently, Monroe County Legislators Mike Barker and Carmen Gumina proposed legislation that would make cyberbullying a crime. Under the bill, cyberbullying directed toward a minor would constitute a Class A misdemeanor in Monroe County, punishable by up to a year in jail.

The crime of cyberbullying would occur where the defendant engaged in the following conduct: “(W)ith intent to harass, annoy, threaten or place another in fear of personal injury, engaging in a course of conduct or repeatedly committing acts of abusive behavior over a period of time by communication or causing a communication to be sent by mechanical or electronic means, posting statements or images on the Internet, through a computer network, or via cell or smart phone. Acts of abusive behavior shall include, but not limited to: taunting; threatening; intimidating; insulting; tormenting; humiliating; disseminating sexually explicit photographs, either actual or modified, of a minor; disseminating the private, personal or sexual information, either factual or false, of a minor without lawful authority.”

WHAM (13wham.com) recently reported that Gumina explained the law was needed because current laws have not kept up with technology: “There is no law around posting pretty nasty things about your peers. … It’s almost impossible now because there is no law on the books … At least there will be a law in the books that could help law enforcement prevent bullying from happening in the first place.”

While Gumina’s intentions are no doubt well-intentioned, his assertion that no other laws address this type of conduct is simply false.

I am the co-author, along with Brighton Town Court Justice Karen Morris, of the Thomson West treatise “Criminal Law in New York,” a book that thoroughly examines the substantive crimes defined in New York’s Penal Law.

As part of my preparation for the yearly supplement to this treatise, I review all new New York cases addressing the crime of aggravated harassment in the second degree, which is, just like the cyberbullying law proposed by Barker and Gumina, a Class A misdemeanor.

Penal Law s. 240.30(1) provides that a person is guilty of aggravated harassment in the second degree “when, with intent to harass, annoy, threaten or alarm another person, he or she:

1. Either (a) communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm; or

(b) causes a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm …”

When Penal Law s. 240.30(1) was originally enacted, it required that the communication occur “by telephone, or by telegraph, mail or any other form of written communication.” In 2008, the statute was amended to include communications delivered via digital means and the following language was added: “by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication.”

In keeping with the legislative intent behind the 2008 amendment, New York courts have broadly interpreted this section to include harassing communications made using mechanical means, including the Internet, so long as the communication was directed at the complainant, People v. Munn, 179 Misc. 2d 903, 688 N.Y.S.2d 384 (City Crim. Ct. 1999).

Also covered by this section are unwelcome messages transmitted via online social networking sites or online forums, People v. Rodriguez, 19 Misc. 3d 830, 860 N.Y.S.2d 859 (City Crim. Ct. 2008); People v. Munn, 179 Misc. 2d 903, 688 N.Y.S.2d 384 (City Crim. Ct. 1999). Similarly, emails and text messages are also forms of communication contemplated by Penal Law s. 240.30(1), M.G. v. C.G., 19 Misc. 3d 1125(A), 862 N.Y.S.2d 815 (Fam. Ct. 2008); People v. Limage, 19 Misc. 3d 395, 851 N.Y.S.2d 852 (City Crim. Ct. 2008).

So, contrary to Gumina’s contention, the proposed cyberbullying bill is unnecessary. The conduct prohibited by the bill is already unlawful in New York pursuant to aggravated harassment in the second degree and passing the proposed legislation would duplicate the current law and cause confusion in the prosecution of new crimes.

Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations at MyCase, a powerful and intuitive cloud-based law practice management platform. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.

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