Online Harassment

Federal prosecutors frequently utilize 18 U.S.C. § 2261A to charge online harassment that crosses state lines. This statute criminalizes the use of any interactive computer service to engage in a course of conduct that places a person in reasonable fear of death or serious bodily injury.

The penalties are severe and can include up to five years in prison for a first offense. We challenge the jurisdictional elements of this crime. If the communications did not cross state lines or if the alleged victim was not placed in reasonable fear of physical harm, the federal statute does not apply. We also attack the course of conduct requirement by arguing that isolated incidents do not constitute a pattern of harassment.

Doxxing involves the malicious publication of private information such as a home address or social security number to encourage harassment by others. While there is no specific federal doxxing statute, prosecutors often charge this conduct under harassment or interstate threats laws.

We defend against these allegations by examining the source of the information. If the information was already publicly available in phone books or property records, its republication is generally protected by the First Amendment. We argue that compiling public records is not a crime even if the intent was to criticize or embarrass the subject. This distinction shields our clients from liability for sharing truthful information.

We analyze the content of the messages through the lens of Supreme Court precedent. Offensive speech is protected speech. If a client tweeted "I hope you die" during a video game match, it is likely protected hyperbole.

However, if they tweeted I am coming to your house at 123 Main Street to kill you, it may be a true threat. We contextualize the language. We show that in the specific online community where the comments were made, such language is common slang rather than a literal declaration of intent. By proving the speech was not a true threat, we strip the government of its power to prosecute.

The prosecution must prove that the defendant subjectively intended to threaten the victim. Negligence is not enough. Under the Supreme Court’s Counterman decision, the state must show a reckless disregard for the threatening nature of the speech.

We delve into the client’s state of mind. We present evidence that the client was unaware their words would be perceived as threatening. We argue that the recipient’s subjective fear is irrelevant if the defendant did not act with the requisite criminal intent. This focus on mens rea allows us to defend clients who were misunderstood or whose sarcasm was lost in text-based communication.

Most states have enacted laws specifically criminalizing the non-consensual distribution of intimate images. These statutes typically require proof that the defendant knew the victim expected privacy and that the distribution caused harm.

Federally, victims can sue for civil damages under the Violence Against Women Act (VAWA) civil rights remedy in some contexts. We defend against both criminal and civil actions. We challenge the expectation of privacy element. If the victim previously posted the images on a public site like OnlyFans, we argue that they waived their privacy rights regarding those specific images. This defense prevents the criminalization of sharing content that was already public.

A common defense is lack of distribution. Merely possessing the images is rarely a crime unless they involve minors. The crime is the sharing.

We scrutinize the digital trail. If the images were hacked from our client’s phone or shared by a third party without our client’s knowledge, there is no criminal liability. We also explore the defense of consent. If the victim sent the images with the understanding that they would be shared or posted, the non-consensual element is missing. We use text messages and communications to establish the scope of the consent given at the time.

Sophisticated hackers often use zombie computers to route their traffic. This means an innocent person’s computer appears to be the source of the harassment.

We investigate whether our client’s device was part of a botnet. We also analyze the timing of the messages. If the logs show messages were sent when our client was at work without access to the computer or on a flight without Wi-Fi, the attribution fails. We use alibi evidence to physically separate the client from the device at the critical moments.

Digital evidence is fragile and easily manipulated. Screenshots can be photoshopped and emails can be forged. We demand the native files for every piece of evidence.

We challenge the chain of custody. If the prosecution cannot prove that the digital file presented in court is identical to the one allegedly sent, it is inadmissible. We also act to preserve exculpatory evidence such as server logs that show the client attempting to delete the posts or apologize (demonstrating a lack of malicious intent).

The burden of proof for a restraining order is lower than for a crime but the petitioner must still prove a course of conduct that serves no legitimate purpose. We argue that the communications served a legitimate purpose such as news reporting, political debate or investigating consumer fraud.

We also challenge the future harm requirement. A restraining order is preventative, not punitive. If the relationship has ended and there has been no contact for months, we argue that an order is unnecessary because there is no risk of future harassment.

A restraining order based on online harassment can destroy a career. Medical boards, bar associations and financial regulators view these orders as evidence of instability or moral turpitude.

We negotiate settlements that avoid the entry of a formal order. We often propose civil stay-away agreements which are private contracts between the parties. This resolves the safety concerns of the accuser without creating a public court record that would trigger professional disciplinary action. We prioritize protecting the client’s license and livelihood while resolving the dispute.