Unlawful Surveillance in New Internet Crimes

3079 words (12 pages) Essay in Criminal Law

30/07/19 Criminal Law Reference this

Last modified: 30/07/19 Author: Law student

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Part I

            Internet crime is seen to be an ever-growing problem in society today. As many people praise the freedom and accessibility the Internet offers, it is also a place with limited restrictions. Caitlin Cobb, an accomplished young woman running for Mayor in Newport was targeted by her ex-boyfriend, Stuart Smith, a stranger, Joe Johnson, and porn industry tycoon, Brian Budd. In each instance, Cobb’s privacy and reputation were put on the line. Caitlin Cobb fell victim to the very few and underdeveloped laws that are in place to protect both victims and companies. The few laws in place are not equipped to protect individuals from the harmful and unguarded territories the Internet has to offer.

Unlawful surveillance is the process of unlawfully filming someone else in a state of undress or engaged in sexual activity (Lieberman, 10-25-18, 23). After a night out, a video of Caitlin Cobb and Joe Johnson passionately kissing in the privacy of his own home was released to the public a few days after it occurred. At no point was Cobb aware of the video being taken nor the possibility of it being released to the public. The question here is whether or not Johnson unlawfully recorded the video of Cobb and himself passionately kissing. While Cobb may expect privacy from the unknown footage, there, unfortunately, is only one statute in Rhode Island protecting a victim from unknown recording, which is video voyeurism. The visual contents purpose was not for sexual arousal nor did it include exposed intimate areas of the body, meaning Johnson could not legally be held accountable for the recording (Lieberman, 10-25-18, 24). This, unfortunately, is one area of law in Rhode Island that should be reexamined, it is unfair for individuals to only be able to seek justice if the unknown recorded content was used for sexual gratification and not for other damaging outlets.

The recording not only violated her sense of privacy, but its’ release to the public was also an additional intrusion. The video caused harm in Cobbs personal and professional life. It showed Cobb cheating on her boyfriend which was problematic to her relationship with Smith and may have affected the way people in the city of Newport might think of her ability to be in a position of power. After Cobb confronted Johnson about the video he said the public had a right to know who she really was. This then raises the question of whether or not public interest outweighs the expected personal privacy of Cobb. According to cases like Bollea v. Gawker, the right to privacy as a public figure may be limited, being that public figures already broadcast intimate details of their lives to the public (Toobin, 2017). Cobb welcomes the public in her life as she campaigns through personal interaction and publicized events, she makes herself available to the people for popularity purposes but by doing those things she revokes part of her expected privacy. Since Cobb is campaigning to enter a position of power, the content of the video may be important for the public to see as it can change character and decision-making abilities. Although criminal charges would not be likely, Cobb should file a civil suit for intentional infliction of emotional harm and privacy invasion as his intention was to damage Cobbs reputation and her personal life (Lieberman, 9-27-18, 45). For his gross invasion of privacy and present malice, Cobbs suit against Johnson for releasing the video may be able to grant her compensatory and emotional damages.

Another issue that needs to be addressed is cyber harm by means of doxing. Doxing is the publishing of private or identifying information about an individual on the internet, most commonly with malicious intent (Lieberman, 9-27-18, 4). Cobb was able to find Johnsons contact information after visiting a website called “ReportA$$holes.com”. On the site, Cobb saw his photo next to a caption warning people to stay away from Johnson. The caption stated he was evil, was looking to expose and destroy your life. The individual divulged they attempted to have Johnson arrested but was not able to, nor could they sue. They then posted his phone number and his home address. The question is whether or not Johnson could pursue this invasion of privacy. Johnson could find relief in suing the website for allowing these harmful posts, but Section 230 makes that an unlikely possibility as it protects Internet services from liability of material being posted by its users (Lieberman, 11-1-18, 14). Instead of going after the site he may be able to file a suit for defamation, but that would only prove to be effective if the information posted was incorrect (Lieberman, 11-1-18, 7). Johnson might also consider filing a suit for cyber harassment. In Rhode Island, it is a crime to cyberstalk or cyberharass someone under section 11-52-4.2 of Rhode Island General Laws. An individual is guilty of cyberharassment when they transmit communication by means of a computer to a person or for that person to be contacted for the purpose to be harassed. If the individual is found guilty of the misdemeanor they may be imprisoned for not more than a year and or receive of fine up to $500 (Lieberman, 9-27-18, 34). Johnson could potentially argue that the vague details but harsh words, and contact information created an environment that welcomed harassment. Equally, the individual who posted that content could argue First Amendment Rights. If the individual is penalized for the content or it is restricted, the infringement on freedom of speech would be going against the purpose of the constitution and legal restrictions already created and enforced. With no clear probable remedy, Johnson would most likely find no relief.

Following the issues presented with Joe Johnson, Caitlin Cobb’s relationship with Stuart Smith ended and with that came more problems. Online impersonation is seen when a harasser creates a fake account through the use of one or several social media outlets for the purpose of harming, defrauding or intimidating the individual they are pretending to be (Lieberman, 10-25-18, 36). Holding resentment towards Cobb, Smith created a fake Facebook account impersonating her. Smith used Cobb’s name and pictures and began to friend request their mutual friends. Smith started communicating with Matt Mann after his fake Cobb account was accepted. Pretending to be Cobb, began speaking in a sexual manner during their conversations. After a sexual interest was established, Smith sent Mann an intimate video he received from Cobb while they were in a relationship.

Luckily, there is enough evidence to prove Smith was impersonating Cobb and could be held accountable. In Rhode Island, the action of online impersonation is a crime. In section 11-52-7.1 of the Rhode Island General Laws a person commits the crime of online impersonation if they, “uses the name or persona of another person to create a web page on or to post one or more messages on a commercial social networking site or sends an electronic mail, instant message, text message, or similar communication without obtaining the other person’s consent and with the intent to harm, defraud, intimidate, or threaten any person” (Lieberman, 10-25-18, 41). Not only did Smith create the fake account with Cobb’s name attached, he friend requested multiple people, communicated with Mann, and sent a non-authorized video to Mann with intent to harm Cobb. If Cobb were to file a lawsuit, Smith would be found guilty of a misdemeanor and would be subjected to up to one year in prison, a $1,000 fine, or both, and may be ordered to provide additional restitution (Lieberman, 10-25-18, 41). Being that Cobb is a public figure she should file the suit as it would keep Smiths impersonation from affecting her campaigning, it would also keep Smith from interjecting himself in her life in a harmful manner.

During their relationship, Cobb felt comfortable sending Smith intimate pictures and videos while he was away for the navy, he then, unfortunately, used that content for revenge. The definition of non-consensual pornography is, “the distribution or publication of nude or sexual images or videos without the consent of the person depicted”, which is exactly what Smith did (Lieberman, 10-18-18, 3). While the content she sent was consensual at the time, the distribution done by Smith was not and was a gross invasion of privacy. An important thing to note is contextual consent, which means the consensual sharing of an image or video with one person is not a waiver for the recipient to share the content with the internet or other people (Lieberman, 10-18-18, 19). After the breakup, Smith created a fake Facebook account as a means of revenge. He began contacting Matt Mann off of the account pretending to be Cobb and sent Mann an intimate video of Cobb without her consent. Although Mann later sent the explicit video to a friend in the porn industry, there was no distinction in the text of whether or not “Cobb” gave him permission; and if Cobb (Smith) did, is it reasonable for Mann to argue consent? If consent wasn’t even addressed, Matt Mann could potentially face nonconsensual pornography repercussions as he also distributed the video for publication.

Cobb, fortunately, has several options with how she chooses to move forward with the issue at hand. Fortunately, Rhode Island passed a revenge porn bill in 2018. The bill finds a person guilty of revenge porn if one intentionally disseminates, publishes or sells a visual image that identifiably depicts another person eighteen years of age or older engaged in sexual conduct or the intimate areas of the individual without their consent (RI. Stat. 2018). If Cobb chooses to file a suit against Smith, she’d have a strong enough case to get a guilty verdict. If Smith were to be found guilty it would be a misdemeanor and would be subject to not more than one year in prison, a fine not exceeding $1,000, or both (RI. Stat. 2018). If Cobb would rather handle this matter in family court, since she had an intimate relationship with Smith she could be granted a same-day temporary order of protection which restricts the harmful behaviors, such as posting or distributing sexually exploitive content (Lieberman, 10-25-18, 3). More information would need to be known to determine the possible outcome over whether or not Cobb could lawfully file any suit against Mann. Cobb could additionally file for copyright of the video and any other videos or images she previously sent to Smith. If the content is copyrighted, the law would require those who don’t own the rights to not publish the content or distribute it as if it were their own (Lieberman, 11-1-18, 20). If Cobb did not wish to go through a trial she could easily get the same-day temporary order of protection and copyright her pictures to keep Smith from distributing them further. While those options alone would be beneficial, Cobb should additionally file a suit for nonconsensual pornography against Smith. He is scorned ex-boyfriend that took advantage of the situation and intentionally released the video knowing it would harm her just to exact his revenge, which is unacceptable and childlike.

After Smith distributed Cobb’s private explicit video, it was sent to Brian Budd, who was the site operator of a pornography website stationed in Texas. After watching the video Budd recognized Cobb as the women running for office in Newport. After finding her contact information Budd sent Cobb an email explaining that he had the video and was ready to post it to his pornography website unless she was willing to pay $1,000,000 in exchange for destroying the video. Sextortion is the act of forcing an individual to either pay money or perform sexual acts by the threat of revealing private information about that individual or publishing their sexually exploitive content (Lieberman, 9-13-18, 20). If Budd had just posted the video or destroyed it on his own accord he would not be eligible for violating statutes that protect us against sextortion. Being that Budd is based out of Texas, he could be held accountable under Texan law. If Cobb were willing, she could file a suit for sexual coercion, which is section 21. 18 of the penal code in Texas. The statute states that an individual can be found guilty of sexual coercion if they intentionally threaten, including coercion and extortion to disclose or promote intimate material in return for not fulfilling the threatened offense (5 Texas S.C. § 21.18.). In Cobb’s case that would mean it is criminal to threaten to publish the intimate material in exchange for $1,000,000. If found guilty, the offense is considered a state jail felony. If a copyright was also filed, the website would not be able to publish the video without her consent, and if it were to posted, the website would be committing copyright infringement (Lieberman, 11-1-18, 20). In that scenario, Cobb could file a civil suit for damages and a notice to take down. The best option for Cobb in this instance would be filing a suit against Budd both criminally and civilly, as she would not have to pay $1,000,000 or have her intimate video published for everyone to see, there is also a great chance she will receive some sort of remedy from Budd.

While it is up to Caitlin Cobb to ultimately decide her course of action it is in her best interest to fight, especially because she’s campaigning for a position in power. Cobb has several choices for the issues presented in the narrative. The only instance where the law is lacking is with the issue of unlawful surveillance. While Cobb can pursue a civil route, she, unfortunately, would not be able to confront Joe Johnson in a criminal manner. The laws in place today have proven to be effective, but there is always room to expand and develop more legal culpability.

Part II

The Rhode Island and Texas legislation provided Caitlin Cobb with many protections and options to proceed forward, but while there were good opportunities in place there were also areas of the law that were lacking. Cobb found protection and legal remedies with online impersonation, nonconsensual pornography, and sextortion, but unlawful surveillance has not provided enough security and aid. Rhode Island’s general laws address the issue of unlawful surveillance, but only in a voyeuristic manner. The slight distinction of intent could save an individual’s reputation and happiness. It is unfortunate that unknown recordings may only be prosecuted when the purpose was sexual gratification, there are many other instances, like this one, that could harm the victim in different and if not worse manner. Instead of relying victims on seeking help through a civil court, unlawful surveillance should be criminalized in Rhode Island.

Criminalized unlawful surveillance should include not only video voyeurism but unknown recordings for intent other than sexual gratification. Being that an individual who falls victim to unlawful surveillance for the purpose of destruction, outside of sexual gratification, may be subjected to publicized induced harassment and an invasion of privacy. This, in turn, can be much more damaging to the mental health and stability than that of someone who’s unconsented intimate life proved satisfactory for another individual. By no means is that diminishing the harm those individuals feel, it is simply shedding light upon an underdeveloped area.

The new law should make it criminal if an individual is found guilty of unlawful surveillance when, for the purpose of intentional harm, duress, or harassment of another individual, such person:

  • Uses, installs or permits the installation of an imaging device to capture or record visual images or videos of another engaged in intimate conduct without their consent and knowledge, and in circumstances which that person responsibly expected privacy.
  • Intentionally, and with the knowledge that the image or video was obtained by means of violating subsection (a), disseminates, sells or publishes such content without the knowledge and consent of the individual depicted.
  • A person found guilty of the crime of unlawful surveillance shall be fined not more than one thousand dollars ($1,000), and/or imprisonment up to one year. If found guilty in a second offense a person shall be fined five thousand dollars ($5,000) and up to 2 years imprisonment.

This law would pass challenges as it protects society and doesn’t infringe upon the rights of others. This law would not be prohibiting images that would be taken in public view, this law would prohibit the imaging done in places where privacy is expected. Paparazzi and other news outlets may argue with the restriction, but this law is only restricting areas like hotel rooms or bedroom windows, which are often photographed or recorded and depicts individuals in moments they presumed were private. The law protects the individuals who are targeted through means other than sexual gratification. No one needs disposable access to this part of someone’s life. The privacy invasion society is accustomed too needs to shift, especially as people discover new ways to become destructive entities in the lives of those they want to hurt. This would remove unnecessary freedoms that to be nothing but destructive.

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