In the last two decades, the Internet has revolutionized the way people communicate and socialize. Unfortunately, our legal system has yet to adapt to the new norms of the evolving information age.
Case in point: According to Washington state law, a person is guilty of criminal "cyberstalking" if he makes an electronic communication using lewd or indecent language with the intent to embarrass another person. In other words, a Washingtonian who creates a raunchy email message, blog post or Web video to embarrass a foe isn't just playing dirty; he's technically breaking the law. One YouTube user recently learned this lesson the hard way.
Last month, the scandal-ridden Renton Police Department launched a criminal cyberstalking investigation against a YouTube user known only as "MrFuddlesticks." The user had uploaded a series of lewd, animated videos poking fun at recent allegations of wrongdoing by Renton police officers. In one video, a character talks about his civilian superior's lack of law-enforcement experience; in another, characters discuss the impropriety of a police officer who slept with a murder suspect.
Even though none of MrFuddlesticks' videos mention the city of Renton or any police officers by name, Renton police managed to convince a county judge to issue a warrant to compel Google, YouTube's parent company, to disclose identifying information about MrFuddlesticks' accounts, including credit-card details and even contents of Gmail messages.
After a local news station broke the story, an attorney representing an undisclosed client moved to quash the search warrant. Shortly thereafter, the city of Renton dropped its case and announced it was pursuing the matter internally. By that point, several media outlets had already speculated that MrFuddlesticks was a disgruntled member of the Renton Police Department.
Despite Renton's eventual decision to abandon its criminal investigation of the matter, the curious case of MrFuddlesticks raises serious concerns about how state laws impact online expression.
In 1999, the novel issue of cyberstalking was examined by the U.S. Attorney General's Office, which published a report that would become the basis for anti-stalking laws in several states. While the report emphasized the need for "relatively broad" laws, recognizing that stalkers constantly devise new ways of tormenting their victims, it also warned that laws that are not "carefully formulated and enforced" could run afoul of the First Amendment by curbing protected speech.
These warnings are no longer just legal theories. Indeed, as UCLA law professor Eugene Volokh observed in a recent essay about the Renton controversy, Washington's cyberstalking statute is "clearly constitutionally overbroad" if prosecutors can interpret it as broadly as they did in pursuing MrFuddlesticks.
Washington is not the only state with a cyberstalking law on the books. More than 34 states have similar laws, as does the federal government. That law, signed by President Bush in 2006, goes so far as to criminalize any anonymous Internet communication intended to "annoy" another. Although federal prosecutors have exercised reasonable discretion thus far, the statute's seemingly limitless reach remains deeply worrisome to free-speech organizations such as the American Civil Liberties Union.
Nearly four in five Americans are Internet users today, and that number is growing. Online communities are enabling individuals around the world to communicate and interact like never before. But as the saga of MrFuddlesticks and the Renton Police Department illustrates, overbroad laws targeting electronic speech are ripe for exploitation by overzealous prosecutors and police officers.
If lawmakers do not write new laws carefully and judges do not vigilantly guard our constitutional protections, we can say goodbye to civil liberties online.