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New York court holds Internet pranks are not stalking

Stacked3This week's Daily Record column is entitled "New York court holds Internet pranks are not stalking ."  My past Daily Record articles can be accessed here.

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New York court holds Internet pranks are not stalking  

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.


Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also 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 niki@mycase.com.


Wearable tech data as evidence in the courtroom

Stacked3This week's Daily Record column is entitled "Wearable tech data as evidence in the courtroom."  My past Daily Record articles can be accessed here.

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Wearable tech data as evidence in the courtroom

When I first started writing about the importance of social media to lawyers in the mid-2000s, it was an uphill battle to convince lawyers that social media should matter to them. It wasn’t until social media began cropping up in cases a few years later, both as the medium for the commission of crimes and as evidence in courtrooms, that interest in social media suddenly increased. When this began to happen, it was a turning point. Lawyers were suddenly much more amenable to learning about social media and how they could use it to better represent their clients.

Interestingly enough, I’ve encountered a similar phenomenon when it comes to wearable technology. I first started writing about it a little over a year ago and most lawyers seemed to think it was simply a passing fad.

However in recent months, the tide has begun to turn. I first noticed this when I was speaking on a panel about wearable technology last month in San Francisco at Legaltech West Coast. Toward the end of our talk, an audience member raised the issue of requesting the plaintiff’s Fitbit data during the discovery phase of personal injury cases. For many in the room, it was as if a light bulb suddenly went off. Their eyes lit up and they began nodding their heads in unison. Suddenly they realized that perhaps wearables were relevant to lawyers after all.

A few other astute lawyers have already followed this same line of thinking. For example, in December 2014 it was reported in Forbes that a Calgary law firm used their client’s Fitbit data to show that her activity level had significantly decreased since the accident as a result of her injuries.
In another case reported by Engadget in June, police in Lancaster, Pennsylvania, used a rape complainant’s Fitbit data to refute claims of her assault. She alleged that she’d been asleep when an assailant broke into her home and attacked her, while her Fitbit data showed that she’d been awake and walking around for much of the evening. She was later changed with filing a false report.
These two cases involved only the health tracking data collected by Fitbit. Now that Apple Watch has been released, the types of evidence that can be collected from smartwatches have expanded tremendously. Apple Watches collect all sorts of information including geolocation data, payment information, health-related and activity data, phone call and text data, social media interactions and more.

Of course it’s the health-related information that typically distinguishes wearable data from that collected from smartphones alone — at least for now. But that data amassed as users wear their smartwatches while going about their daily activities can be invaluable and have all sorts of practical applications in a lawsuit.

That’s why the astute litigator would be wise to learn about the different kinds of wearables, the types of data collected, and the implications that can be drawn from the data. Because by understanding the technology — including its limitations and possibilities — you’re able to offer your clients the best possible representation.

Mark my words, like social media evidence, data gleaned from wearables will soon be the difference between a winning case and a losing case. Which side would you rather be on?

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also 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 niki@mycase.com.