What is considered cyberstalking in Florida?
The Florida state legislature currently lacks a specific definition or provision defining "cyberstalking," even though it other provisions and laws may be applicable to those types of actions. Florida Statutes 784.048, Unauthorized Access to Computer or Electronic Device; Penalties, does not have a definition for "cyberstalking" but does provide a definition for "telecommunication harassment." Telecommunication harassment is defined as "a person who, for the purpose to harass, abuse, threaten, or intimidate a person using a telecommunications device directly or indirectly by creating and transmitting, or causing the creation and transmission of, one or more lewd, lascivious, indecent, or obscene words or images to another person in a manner that causes substantial emotional distress to the person and serves no legitimate purpose . " It is important to note that this statute does not make an exception for children or minors.
Florida Statute 784.048 provides a definition for what could be considered cyberstalking but does not specifically name the action. The definition is for "harassing" as "annoying, threatening, stalking, abusing, embarrassing, alarm, or tormenting another person." Some of the specific behaviors that fall under the definition of harassing include following, monitoring, observing, surveilling, tracking, bugging, or ID stalking another person. These behaviors could be considered "cyberstalking" if one or more of these actions are done electronically.
As the world continues to advance technologically, the lack of a clear definition of cyberstalking creates both confusion and an opportunity to exploit a loophole.
The Florida cyberstalking statute
The Florida legislature has enacted several statutes that specifically deal with cyberstalking. Under the revised provisions of Fla. Stat. § 784.048, a "willful, malicious and repeated following or harassing of another person" is an offense. Fla. Stat. § 784.048(2) further provides that a person "who engages in or conducts a course of conduct directed at a specific person" commits the offense. A "course of conduct" is defined as "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose."
"Stalking" under Fla. Stat. § 784.048(1)(a) means engaging in "conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose." An "intentional, unlawful threat, whether communicated or conducted, to cause substantial bodily injury with the apparent ability to carry out the threat and at the time of making the threat has the intent to carry out the threat" is also intended to be included in Fla. Stat. § 784.048(1)(a).
Section 784.0481 of the Florida Statutes supplements Fla. Stat. § 784.048. Fla. Stat. § 784.0481(1) defines cyberstalking as the "willful, malicious, and repeated following, monitoring, threatening, or engaging in other prescribed forms of unwanted conduct against another person through the use of electronic communication or electronic mail." Florida Statutes § 784.0481(1) makes it a criminal offense for one to use any electronic device or software to make repeated, unwanted, and surreptitious contact with another person. Fla. Stat. § 784.0481(1)(b) defines "electronic communication" as "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photonic, or other means." Fla. Stat. § 784.0481(2)(a) provides that "[a]ny person who willfully, maliciously and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking." Stalking is a first-degree misdemeanor. Fla. Stat. § 784.048(3). If the offender has previously been convicted of this type of crime, it is a third-degree felony. Fla. Stat. § 784.048(4).
Cyberstalking in Florida penalties
Since 2008, the Legislature has gradually allowed increases in the penalties for cyberstalking. Initially, cyberstalking was just a misdemeanor, with no jail time and a maximum $500 fine or community service; however, the Legislature doubled those penalties in 2017, raising the maximum fines to $1,000 and instituting a potential jail sentence of 1 year.
Recently, the Dade County Office of the State Attorney sent out an e-mail solicitation for Cyberstalking Prosecutors. The e-mail stated, in part: "Cyberstalking is one of the fastest growing crimes in the United States. It encompasses everything from harassment on dating websites to online impersonation to impersonating or hijacking the cell phone number or e-mail address of a loved one and sending harassing or threatening messages to their contacts." The penalties for a conviction for cyberstalking would be a misdemeanor in Miami-Dade County, Florida, but the ability to use those misdemeanor convictions to apply for more serious felonies in Florida is ever-present.
Cyberstalking vs. cyberbullying
While cyberstalking and cyberbullying are often used interchangeably, they’re not the same thing under Florida law. First, in Florida there is a mock distinction drawn between those who cyberstalk and those who cyberbully:
Cyberstalking is defined by Florida Statute 784.048 as willfully, maliciously, and repeatedly following, harassing, or cyberstalking another person: "Willfully" means that the person had knowledge of the likely result of his or her actions. "Maliciously" means that the person’s primary purpose was to annoy, harass, intimidate, or harm another. "Repeatedly" means on two or more separate occasions. Another thing that distinguishes cyberstalking from cyberbullying is how it’s treated under the law. For the first offense, cyberstalking is a first-degree misdemeanor; however, a second conviction elevates it to a third-degree felony. Depending on the circumstances and if the stalker gets a restraining order against him or her, that person’s firearm possession privileges may end up being revoked.
Cyberbullying, on the other hand, falls under Florida Statute 1006.147, which protects "students and staff of public K-12 educational institutions." The intention behind the law is to create a learning environment free from harassment and violence.
According to the 2018 case of MacDonald v. Safir, Baldwin Union Free School District, 37 F. 3d 141 (2nd Cir. 2018), a school does not need to prove that a student made threats against the target of bullying. "The simple act of a student intentionally pushing or striking another student on more than one occasion is harassment of a physical nature," wrote the courts. Florida Statute 1006.147 establishes the procedures and penalties involved in addressing both school bullying and cyberbullying. The statute defines bullying and harassment broadly, "including harassment, intimidation, or bullying through electronically transmitted acts." Another thing that sets this statute apart from previous laws is that it also covers retaliation from those being reported for such actions. Taking a proactive approach and obtaining a restraining order under Florida Statute 784.046 may be the best solution for those experiencing harassment or stalking under false pretenses by malicious individuals via cyberstalking or cyberbullying.
Restraining orders and protection orders
In light of this definition, if you have been a victim of cyberstalking, there may be some immediate steps that you can take to protect yourself. A victim can seek "any available remedy under law" when cyberstalking occurs. This means anything from deleting or blocking the individual on social media to getting a civil injunction (also known as a restraining order) to a permanent injunction, barring the stalker from communicating with you or coming near you. The purpose of the injunction is to try to prevent the stalking behavior from continuing.
Obtaining a final judgment for an injunction requires a hearing before a judge, and it is wise to have an attorney assist you with gathering the proper documentation to show the judge why the injunction should be granted. There is usually a trial involved in obtaining a permanent injunction, just like any other civil matter. Under the statute , there are many factors that the judge must consider in granting your request for an injunction, including everything from whether the stalker has been violent, threatened you or your family, and whether he or she has attempted to contact you in person, by phone, or through family, friends, or other third parties, including social media, email, or text message.
Following the issuance of the injunction, it is important to notify the police department for your local jurisdiction as well as your employer so that they are aware of it. The police are not likely to take action based on the injunction unless certain conditions are met, such as:
Unfortunately, in this digital age, online harassment is becoming all too common. The good news is that there may be recourse available, including against third party websites that provide platforms for the stalker to operate on.
Tips for those who have been cyberstalked
A victim of cyberstalking in Florida should take immediate steps to preserve evidence and seek legal protection. First and foremost, it is always a good idea to print and download all records and material that could be used as evidence. This includes emails, voicemails, text messages, texts, and photographs. If there is information on your cell phone, computer, social media account, or cloud storage account, you need to preserve that data. It is also wise to change your passwords on accounts and telephone numbers so as to make it more difficult for the perpetrator to stalk or harass in the future.
Ascertaining the identity of the perpetrator can be very difficult, but when possible you should attempt to do so. A stalking injunction will likely require that the perpetrator be identified. Florida Statute 784.048 specifies that stalking can include "a pattern of behavior" and that the perpetrator should be "knowingly harassing," "intimidating," or "following" the victim. Cyberstalking, unlike other types of stalking, is much more difficult to monitor and investigate. For this reason, it is very important for victims to document and compile evidence.
Finally, cyberstalking is a crime, and victims should not be afraid to contact law enforcement. There are a number of criminal charges that can be pursued against cyberstalkers under Florida Statute 784.048. While law enforcement may not investigate cyberstalking to the same degree they would other types of stalking or harassment, it is essential that victims make a report and allow law enforcement to take your statement.
Recent Florida cases regarding cyberstalking
The evolution of cyberstalking legislation in Florida can be seen in recent case studies and legal precedents. One notable case is State v. Spencer, where the court ruled on the increasing severity of cyberstalking offenses. In this case, the defendant repeatedly sent offensive and threatening emails to the victim, who had ended a romantic relationship with him. The court held that these emails constituted cyberstalking under Florida law and upheld the conviction despite the defendant’s argument that the First Amendment protected his right to express his feelings. Other cases have focused on the applicability of cyberstalking laws in the context of domestic violence. In Trespalacios v. State, the court addressed a situation where the defendant violated a domestic violence injunction by repeatedly sending text messages and leaving voicemails for the victim. The court upheld the defendant’s conviction, emphasizing that the cyberstalking law was designed to provide a remedy to victims of such harassment, regardless of the mode of communication. Another significant case for determining the parameters of cyberstalking law in Florida is Hess v. State, where the court considered whether the use of anonymous social media accounts could be considered cyberstalking. The defendant in this case purchased two Facebook accounts to communicate disparaging information about the victim’s business. The court ruled that creating fake social media accounts with the intent to harm another individual constituted actionable cyberstalking under Florida law. These cases highlight the courts’ commitment to interpreting cyberstalking laws broadly to cover the various ways in which stalkers can communicate with their victims. They also show the balancing act courts must perform between protecting the First Amendment rights of alleged offenders and the interest of victims in not being harassed or threatened. As technology continues to evolve, Florida courts will likely face new challenges in interpreting and applying the state’s cyberstalking laws. For example, issues may arise regarding the use of anonymous online postings, deepfakes, and artificial intelligence. Florida’s legislature has shown a willingness to update the law when necessary, but it may be up to the courts to interpret how these advancements in technology impact existing laws.
More resources for help and legal assistance
Resources to Help with CyberStalking and Other Forms of Harassment Under the Anti- Cyberstalking Laws in Florida
For those interested in pursuing the legal proceedings, it is also recommended that you seek help from a computerized legal advice service. An example of such a service is The Legal Assistant, which combines modern technology with other unique features to make the entire legal process exceptionally faster and convenient.
Also noteworthy is the availability of legal aid organizations, hotlines, and support groups that focus on helping victims of cyberstalking in Florida . Some of these organizations include:
The National Center for Victims of Crime – National Stalking Resource Center is a unique resource for individuals dealing with International and U.S. cyberstalking victims. The Center provides information on multiple topics related to cyberstalking, including general information, laws and legal procedures, and hotlines, resources, and links for more help with cyberstalking.
Bytes Against Bullying is another organization that talks about the different forms of Cyberbullying and has a wealth of other valuable information for cyberstalking victims.
Victims of cyberstalking can also seek legal assistance from a cyberstalking lawyer at The Legal Assistant USA.