Cyber-bullying is a form of cybercrime involving the use of information technology to harass or harm persons deliberately (Fanti, Demetriou, & Hawa, 2012). With technological advancement, cyber-bullying has become very common, particularly among teenagers. Cyber-bullying awareness has also increased in an equal measure. The invention of social media platforms, such as Facebook and Twitter, and internet enabled cellphones, has significantly revolutionized the way bullying is done (Flowers, Zeadally, & Murray, 2013). Prior to such innovations, cyber-bullying could only take place through emails. Social media technologies and mobile phones have increased avenues through which bullying can take place. Since the 2000s, cyber-bullying had been transforming at the same pace with the Internet. Currently, people can screenshot, retweet, share, or repost information using their cell phones. Cyber-bullying first attracted the attention of the US government on March 10, 2011 (Stewart & Fritsch, 2011). On this date, the government held the first conference concerning the prevention of bullying. The government had the objective of dispelling the fairytale that bullying was an inevitable stage of growing up. The government recognized, through the president Obama, that bullying does not end at schoolyards; it continues to take place through cellphones, personal computers, and social media. A research by the National Crime Prevention Council revealed that at least 4 in 10 teens have experienced certain forms of cyber-bullying in the previous year, translating to about 43% (Flowers, Zeadally, & Murray, 2013). Additionally, the National Crime Prevention Council categorizes cyber-bullying as one of the underreported crimes. This paper discusses cyber-bullying and the legislations related to it.
Legislation Related to Cyber-bullying
With the occurrence of notorious suicides, like that of Megan Meier, different states and the US Congress proposed various cyber-bullying regulations. According to Stewart and Fritsch (2011), the majority of these laws were motivated by a particular instance of cyber-bullying, whereas others represent a proactive initiative of averting the extreme cases. Most cyber-bullying laws focus on averting online bullying in the context of school. As for 2009, about twenty states had ratified laws for averting cyber-bullying. The laws prevented bullying in two different forms (Lidsky & Garcia, 2012). Firstly, some cyber-bullying laws particularly ban the act in the operative provision. Secondly, other laws ban the act in the constitutional definition of the terms intimidation and harassment.
Several laws already allow the prosecution for threats, stalking, identity theft, and several other forms of harassment (Kraft & Wang, 2009). It has also been argued that the present laws are adequate in averting cyber-bullying. Others have also suggested that there is a need for particular legal regulations that decriminalize cyber-bullying. In spite of public outrage and the availability of relative laws, authorities have often had trouble finding a criminal law under which to prosecute a suspect. Until recently, there are no legal regulations that specifically deal with cyber-bullying (Flowers, Zeadally, & Murray, 2013).
Fanti, Demetriou, and Hawa (2012) argued that civil laws decriminalize cyber-bullying if no crime has taken place. Under civil laws, a victim of cyber-bullying can file a civil litigation against the bully, bully’s family, bully’s school, or school district attorney based on the evidence. According to Flowers, Zeadally, and Murray (2013), the civil law differs from the criminal law in that it defines the actions that are deemed offensive against the entire society as a whole. In the civil litigation, there are penalties for the individuals violating the rights of others, and not an imprisonment (Lidsky & Garcia, 2012). On the other hand, imprisonment only takes place in the event of criminal case. A deliberate infliction of emotional distress and defamation are some of the grounds upon which one can file a civil lawsuit when someone causes an irresponsible or deliberate emotional distress (Lidsky & Garcia, 2012).
Limitations and Gaps Related to the Legislation
The crucial constitutional defect in the criminal regulation of cyber-bullying is that it combines the definition of cyber-bullying as a social issue with the legal definition of cyber-bullying as a crime (Lidsky & Garcia, 2012). This results in the violation of the First Amendment. As a social problem, cyber-bullying has a wide scope: it is a certain form of a relation or social aggression instigated by many people, and it takes several forms. Other definitions seem to emphasize the repeated aspect of the unlawful conduct (Flowers, Zeadally, & Murray, 2013). For instance, according to the National Conference of State Legislatures, cyber-bullying refers to the repeated and deliberate use of electronic communication devices, such as mobile phones and computers, to threaten or harass other individuals. According to Kraft and Wang (2009), such definition of cyber-bullying by the existing laws used in the criminalization of cyber-bullying might only be helpful for the formulation of a wide policy response. In addition, Stewart and Fritsch (2011) pointed out that such descriptions of cyber-bullying are useful in the establishment of response plans in public schools. Nevertheless, the First Amendment necessitates that policymakers and lawmakers to utilize the narrower definitions that are less fulfilling politically.
According to Fanti, Demetriou, and Hawa (2012), the laws attributed to avert cyber-bullying, whether civil or criminal, suffer from ambiguity and over-breadth, and consequently, they are unconstitutional. The regulations are ambiguous because they fail to notify the defendants of the forms of electronic communication they can use in infringing the law, and because it provides too much leeway to the law enforcement authorities to prosecute merely bad manners (Flowers, Zeadally, & Murray, 2013). The regulations are also very broad, since they drag a large portion of protected speech into its scope along. As an example of the vagueness created by the existing statutes, one should consider following: would the emailing of a racist, religiously, or homophobic intolerant cartoon or joke be a recognized liberal cause of violation of the law?
Penalties for Engaging in Cyber-bullying
In the United States, the punishments for cyber-bullying are extensive, as the regulations discussed above (Flowers, Zeadally, & Murray, 2013). Based on the state or applicable federal laws, penalties might range anywhere from civil penalties, school intervention through suspensions or expulsions, to a jail time for the criminal delinquencies and even felonies. Cyber-bullies can be subjected to serious punishments or consequences if proven guilty (Kraft & Wang, 2009). Some of the individuals that might be involved in these cases include the law enforcement agencies and Federal Bureau of Investigations. According to Flowers, Zeadally, and Murray (2013), in states, such as Massachusetts, a cyber-bully might face three possible consequences in the event of being found guilty. The first category of penalties includes a fine and or a minimum jail time of two years. Depending on the gravity of the crime, the criminal might also pay a fine and have a serve jail time (Fanti, Demetriou, & Hawa, 2012).
In certain states, such as New York, schools are also required to deal with cyber-bullying. Such states believe that schools are in a better position to deal with the problem of cyber-bullying (Kraft & Wang, 2009). According to Stewart and Fritsch (2011), school authorities can observe the conduct of students. In addition, schools in certain states are allowed to discipline bullies for their behavior, and they can provide the necessary resources, such as counseling of both the victim and the bully. However, schools might be restricted in the disciplinary actions they can pursue if it is a case of civil wrong (Flowers, Zeadally, & Murray, 2013).
The Degree to which the Identified Penalties Are Adequate for Penalizing the Offender
Despite the incidence of bullying not increasing drastically within the last few years, the awareness concerning the issue has increased, coupled with the severity of the issue (Fanti, Demetriou, & Hawa, 2012). Whereas there is no current federal regulation on cyber-bullying, states have formulated their own laws, in order to create a safe and secure online environment. The laws of each state vary in efficiency because the laws vary in procedure, policies, and event definitions of bullying.
These laws are ineffective, because they focus on cyber-bullying taking place at schools (Flowers, Zeadally, & Murray, 2013). In general, the cyber-bullying laws require schools to implement policies to address the issue, and they also issue the school authorities to discipline students for inappropriate cyber behavior. Ineffectiveness sets in because it is hard for schools to discipline students for cyber-bullying behavior that takes place outside the vicinity of the school (Flowers, Zeadally, & Murray, 2013). Despite some laws stating explicitly the regulation of cyber-bullying, both on- and off-campus, some do not define the boundary within which the school can discipline the cyber-bullying behavior. The vagueness of the law makes it hard for schools to punish students for violating the cyber-bullying laws (Flowers, Zeadally, & Murray, 2013).
It is agreeable that majority of the laws are tucked in hullabaloo because of the financial and administrative burdens put on schools (Flowers, Zeadally, & Murray, 2013). Some schools across the country affirm that anti-bullying regulations necessitated by the state laws are not efficient. For instance, the Massachusetts cyber-bullying law, which was once regarded as a model law for other states, is currently perceived to be ineffective and lacking oversight because of inadequate resources (Fanti, Demetriou, & Hawa, 2012). The penalties are not adequate for addressing cyber-bullying.
Challenges that Law Enforcement Might Face in the Efforts to Prevent and Address Cyber-bullying
There are different challenges for making decisions that are faced by the law enforcement officers in preventing cyber-bullying. First, a cyber-bullying investigation of persons aged 17 years old and below could lead to criminal charges that have the possibility of triggering Miranda warnings (Kraft & Wang, 2009). Consequently, such investigations might require the presence of a parent or an interested adult. According to Flowers, Zeadally, and Murray (2013), law enforcement must also have in mind that, while in partnership with schools, they do not make the school administration an agent of law enforcement during
the investigations. Flowers, Zeadally, and Murray (2013) pointed out that making the administration an agent of law enforcement might lead to significant information being inadmissible in the court of law.
The challenge is that law enforcement must keep pace with the technological advancement, which takes place very rapidly in the era of innovation. Flowers, Zeadally, and Murray (2013) cited that law enforcement officers should uphold a working awareness of the recent technology and social networking sites in order to instigate effectively the cases linked to cyber-bullying. According to Kraft and Wang (2009), this can be a challenge to law enforcement officers, who are often intimidated by technological innovations. Contrary to conventional bullying, the trails of cyber-bullying can be traced. Verbal threats, taunting, and fighting on the playground might be extremely difficult to investigate (Kraft & Wang, 2009). However, online bullying can reveal an electronic footprint as the evident that can be linked to the criminal and be proved in the court of law. Regardless of the perceived anonymity linked to the internet, law enforcement has several tools to investigate and track the online bullying cases. The availability of several tools and a huge amount of information increases the complexity of cyber-bullying criminal cases (Flowers, Zeadally, & Murray, 2013).
The third challenge is that several states, including Massachusetts, have no particular law that deals with cyber-bullying. Nevertheless, policymakers and legislators have recently amended the laws to integrate the phrase electronic communications. According to Flowers, Zeadally, and Murray (2013), this enables law enforcement officers to utilize the existing laws to deal with cyber-bullying. For instance, laws linked to criminal harassment can be employed in cases where texting is used for threatening and bullying a victim. In addition, fraud laws can also be used in litigations where web pages are created using the identity of another person (Flowers, Zeadally, & Murray, 2013). The challenge posed by the multiple laws is that the accused can win a case based on another regulation. Generally, law enforcement officers have a hard task of exploring all the laws violated to ensure that the culprit is brought to book.
This conclusion is divided into two parts: law enforcement’s use of technology to address cyber-bullying, and law enforcement’s use of technology to benefit the society. Whereas cyber-bullying is facilitated by the use of Internet communication and mobile phones, there is a linked flipside of the issue: law enforcement officers use computers and Internet to conduct criminal investigations. There are two important ways which law enforcement officers can use in preventing the crime is social media and geo-fencing. Social media increases the engagement of law enforcement, whereas the geo-fencing technology assists law enforcement to deal with the cases of cyber-bullying. Law enforcement department with the proactive social media strategy is likely to experience a good return on their investment. Such departments solve their crimes first, because the community is involved at large and provides necessary information which the police would not have had before. Social media can be a valuable resource for the community to convey what is taking place. From a preventive perspective, the management of law enforcement can send out the warnings concerning cyber-bullying through social media. The investigative and preventive measures can free up the staff to deal with other issues. In addition, through the social platforms, law enforcement officials can encourage victims to share sentiments deemed to be violating cyber-bully laws. Geo-fencing refers to a technology that narrows searches for information in the virtual world. Law enforcement officers can search the social media for posts that occurred near a certain event to reveal the instances of bullying. For instance, tweets or Facebook posts that took place shortly before or after an event caused by cyber-bullying occurred.
- Fanti, K. A., Demetriou, A. G., & Hawa, V. V. (2012). A longitudinal study of cyberbullying: Examining risk and protective factors. European Journal of Developmental Psychology, 9(2), 168-181.
- Flowers, S., Zeadally, A., & Murray, A. (2013). Cybersecurity and US legislative efforts to address cybercrime. Journal of Homeland Security and Emergency Management, 10 (1), 29-55.
- Kraft, E. M., & Wang, J. (2009). Effectiveness of cyber bullying prevention strategies: A study on students’ perspectives. International Journal of Cyber Criminology, 3(2), 513-535.
- Lidsky, L. B., & Garcia, A. (2012). How not to criminalize cyberbullying. Missouri Law Review, 77, 693.
- Stewart, D. M., & Fritsch, E. J. (2011). School and law enforcement efforts to combat cyberbullying. Preventing School Failure, 55(2), 79-87.