In the world of law, 1990 was merely 20 years ago. I was prosecuting petit larcenies and drunken driving cases, much as the new ADAs do today. There was one computer centrally located in the secretarial area. If you forgot to write down an adjourn date you could, with the permission of the head secretary, look up the date in the computer, if you knew how to get into the court system. Most of us choose to call the Court and asked the Clerk. But in the world of technology, 1990 was light years ago. Now every ADA has a desk top computer. Most of us have laptops that we take to court, and we give summations with PowerPoint. Papers are now electronic data; telephone messages and correspondence between attorneys are now e-mails and instant messages. Crimes are committed electronically and evidence is often found through and in electronic forums. As a result, our profession is faced with the need to catch up with the ever-evolving technology not only for ourselves, but most importantly for our children.
I have been a practicing attorney for 20 years and a mother for 14, (somehow the number of mom years always scare me more). In the last six months, in addition to being a Deputy Bureau Chief, I have been appointed by the District Attorney to be the Chief of the Technology Crimes Unit, a unit within the Economic Crimes Bureau of the Nassau County District Attorney’s Office. What I have encountered in Technology Crimes, including luring, harassment, and child pornography, is more eye-opening than my years of dealing with violent felonies. It also reinforces a message – we can’t close our eyes to the growing dangers and issues accompanying technological advances and hope they go away. These issues are not going to fade into the background. We must be prepared to do battle, with the legislature, with institutions, with each other, and most importantly with our children.
Let me give you a scenario, which illustrates where we were and where we’re going. It is 1990 a young man, named Karl, 16 years old, is in the hallway of his high school. The football team big shot walks by Karl and shoves him into the lockers while the 20 guys standing there laugh and then go on to the cafeteria looking for the next guy to push. Karl goes to the bathroom, straightens his shoulders, likely berates himself for not fighting back, and goes to his next class. By the end of the day, the memory fades. That night, Karl calls his buddy and tells him he hates the football team. His buddy replies everyone does and then laughing says by the way, did you hear about the Yankees pitcher Andy Hawkins…. As they laugh and talk about the game, the incident continues to fade and is soon forgotten.
That same scenario in 2010 goes more like this, Karl is in the hallway when the lacrosse team big shot pushes him into the locker. Everyone is laughing, and one guy pulls out a cell phone and snaps a picture of Karl sprawled awkwardly on the ground. When Karl gets to the cafeteria, everyone is snickering because a twitter just went out announcing Klutzy Karl’s arrival in the cafeteria. By ninth period, every student’s cell phone in the class is buzzing with a very funny poem someone wrote about Klutzy Karl and the kinky locker. As Karl walks home his cell phone is constantly buzzing as people text him wanting to know if he’s taking the kinky locker to the prom. He gets home and immediately goes on Facebook to tell his buddy he hates the lacrosse team. When he logs onto his Facebook account a bumper sticker (you know those little boxes on the side) has the picture taken that morning displayed on it with a caption reading Klutzy Karl Keels Over. Worse yet, as he checks it he realizes it’s been sent to everyone in the 11th grade, including the girl he has had a crush on since freshman year. He immediately checks the blog associated with the picture and begins to read the 60 postings which range from LOL (laugh out loud) to WAF (what a freak). By the time he finishes reading the blog has grown to over 100 comments. He turns off the computer and crawls into bed hoping to block the world out. All night he listens to the buzzing of his iPhone knowing that message after message is coming in. When he arrives at school the next day, there are posts and pictures on all the bulletin boards. When Karl speaks to a teacher about it, the teacher tells him to “just not look at Facebook.” Karl is left feeling that no one understands. Three months later, he asks permission to eat in a private resource room because the picture and texts in the cafeteria are non-stop. Three months after that he asks his parents to let him transfer schools.
Think this is an exaggeration? “Karl” and his parents were in my office two weeks ago asking if there was any criminal action that could be taken. His meeting came an hour after a sixteen year old girl, I’ll call Mary, was in my office crying, begging me for a way to get back the photo she had taken of herself in a sexually explicit pose and sent to her boyfriend. You know how that story goes- Mary is in love and thinks that the photo will only be for her boyfriend to see. He gets mad at her three months later for talking to someone else in the hallway and sends the photo to his 10 buddies, who pass it to their 10 buddies and so on and so on. (remember that shampoo commercial?)
“Karl” and “Mary” are not the exception. This “electronic conduct” is now so pervasive it has been named, “cyberbullying” and “sexting.” StopCyberbullying. org, an expert organization dedicated to Internet safety, security and privacy, defines cyberbullying as: “a situation when a child, tween or teen is repeatedly ‘tormented, threatened, harassed, humiliated, embarrassed or otherwise targeted by another using text messaging, email, instant messaging or any other type of digital technology.'” Sexting, a portmanteau of sex and texting, is the act of electronically sending sexually explicit messages or photographs.
As to cyberbullying, according to the Pew Research Center, nearly one-third of teenagers throughout the country have been targets of online bullying. Mid-teens, aged 14 to 17, are most likely to be victims of online harassment. And while online predators seem to be on everyone’s radar screen, studies show that cyberbullying impacts more young people than better-known cyber issues. We are all aware of the recent arrests in Massachusetts in relation to the cyberbullying of Phoebe Prince, and the tragedy in Suffolk County where after Alexis Pilkington took her own life, her memorial page, which was created by her friends, was attacked online.
As for sexting, a 2008 survey of 1,280 teenagers and young adults of both sexes sponsored by The National Campaign to Prevent Teen and Unplanned Pregnancy, found that 20% of teens (13-19) and 33% of young adults (20-26) had electronically sent nude or semi-nude photographs of themselves. Additionally, 39% of teens and 59% of young adults had sent sexually explicit text messages.
Both “Karl” and “Mary” are victims and need to be protected. But the question remains, how? What advice can you give the victims and their parents as their attorney? What steps do you recommend to the school district you represent? What, if anything, can prosecutors and law enforcement do? Can legislation alone sufficiently control this conduct? No, our profession must formally recognize this growing problem and come up with a plan to deal with it whether we represent the victim, the electronic “aggressors,” the schools, or, in my case the People of Nassau County and the State of New York. There is a three tier process described below, which, if instituted, would help prevent an increase in this conduct, and institute consequences for such actions.
First, we must educate our children. Just as we strive to educate them on the dangers of smoking and drinking, just as we have programs to battle the growing use of drugs, like heroin, we must do the same here. Organizations such as CAPS (Child Abuse Prevention Services) do small group programs on cyberbullying, and the Nassau County Police Department, through their Community Affairs Division, present large scale programs. The District Attorney’s Office under the leadership of Kathleen Rice is developing a program, modeled on the Not My Child program, which deals with heroin, to battle cyberbullying and sexting. It will be available to schools and community groups through out the year for education. The program, STOP before you SEND, will emphasize the need to STOP, Study the content, Think about others, Only send if appropriate, and Pictures last forever, before students press the SEND key.
Parents and School Districts are the next tier in the process. They must also be educated on the dangers and traps of the technology children are using. Parents need to be taught how to check the histories of what and where their children are exploring on the internet. They need to be educated on the best way to say NO to certain avenues of the internet and to encourage safe use, not abuse on the internet. The School Districts must be a partner in this process. New York State is one of only 12 states in the country not to have some form of cyberbullying/cyberharassment and sexting law. Almost all of the states that do have such laws begin by requiring the school districts throughout the state to institute standard cyberbullying and sexting training. Attorneys for the districts must encourage schools to be proactive with codes of conduct, education, and taking action against cyberbullying and sexting. School personal should be reminded that the need to keep records of incidents and the responses to those incidents is paramount. Those records and teachers may one day be subpoenaed and called as witnesses.
The third step is to enact meaningful statewide legislation. As attorneys, we need to give serious consideration to supporting legislation which battles this epidemic. The law has not caught up with technology. As prosecutors, when faced with cyberbullying and sexting complaints, we find ourselves trying to fit the square peg into the round hole. The laws for dissemination of child pornography were not written with “Mary” and her boyfriend in mind. The Aggravated Harassment statute was not written with the World Wide Web, texting, and social networks in mind. We need to support laws that fit the crime, not try to fit the crime into the law.
Currently, there is no proposed legislation that sufficiently deals with these issues. We need to face the reality that this technology jungle is not limited to pre-teens and teens, nor limited to crimes; it touches every aspect of our justice system. Recently in Florida, during a felony gun trial, jurors admitted they were texting and making cell phone calls during deliberations. A prosecutor in the case posted a poem on Facebook about what was described as the “trial from hell.” It could be sung to the tune of the theme song from Gilligan’s Island. In another case, an Ohio judge refused to step down from a serial murder case after a local newspaper reported that she may have posted anonymous Internet comments about the defendant and his lawyer. But Acting Ohio Chief Justice Paul E. Pfeifer removed her from the case anyway. In yet another case, a juror in Kentucky may face contempt charges after it was revealed that the juror had “brushed up” on the case during deliberating by watching a YouTube video about it.
The world of technology has changed since 1990 and the world of law must evolve with it. We must protect our children and strive for fairness and justice. There can be no more hiding from these issues or burying our heads in the sand. What was once a push in the playground now becomes a constant attack on a child; what was once a bruised ego which faded in time is now a permanent picture that haunts a teen; what was once a childhood prank is now a video that college admissions officers view. It is time to protect people in a digital age with laws that match the technology; it is time to arm ourselves on the battlefield before us.
Anne Donnelly has been a practicing attorney for 20 years. She is a Deputy Bureau Chief and Chief of the Technology Crimes Unit, a unit within the Economic Crimes Bureau of the Nassau County District Attorney’s Office.
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