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EXCLUSIVE: Department of Justice fails to prosecute online stalking and abuse, new data shows

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The Department of Justice prosecutes only a handful of online threat and stalking cases each year, according to previously unpublished data obtained by ThinkProgress. That’s despite what advocates and activists say are hundreds of crimes each year that primarily target women, people of color, and LGBTQ people.

U.S. Attorneys’ offices prosecuted just 321 cases between fiscal year 2012 and 2016, according to the data, which ThinkProgress obtained through two public records requests. That number included 41 cases of cyberstalking and 280 cases of online threats. Overall, they resulted in 198 convictions—21 for cyberstalking and 177 for online threats.

Those numbers includes only cases where cyberstalking or online harassment were the first charge listed in the indictment. Because of how the statute is written, the number of cyberstalking prosecutions also includes cases where the stalking took place over the phone or through postal mail.

Still, the numbers are “incredibly low” when compared with the prevalence of criminal harassment online, according to Danielle Citron, a professor of law at the University of Maryland Francis King Carey School of Law.

“That’s pathetic,” she told ThinkProgress by phone.

This data supports longstanding claims by activists that federal law enforcement and prosecutors don’t take online stalking and threats seriously—even in cases where specific threats of physical harm have forced people to flee their homes.

“Anecdotally, we’ve definitely heard that law enforcement generally, and the FBI in particular, is not interested in the vast majority of cases,” Mary Anne Franks, a professor of law at the University of Miami School of Law and vice-president of the Cyber Civil Rights Initiative, said in an interview.

Many states also have laws that cover cyberstalking and online harassment. There’s not comprehensive data on state-level prosecutions. But the lack of resources at the local level, inconsistent laws across states, and the jurisdiction-crossing nature of the internet mean the federal government has a definite role, according to Franks.

“The virtue of federal law is that it applies everywhere,” she explained.

The Department of Justice did not return requests for comment. But in a letter to Rep. Katherine Clark (D-MA) last year, the department questioned the value of this data for assessing how often federal prosecutors pursue these types of online crimes.

“[T]hese numbers likely undercount the number of cases involving cyberstalking and cyberharassment,” Acting Assistant Attorney General Samuel Ramer wrote.

GRAPHIC BY DIANA OFOSU
GRAPHIC BY DIANA OFOSU

Citron used public sources to research federal prosecutions of cyberstalking for her 2014 book Hate Crimes in Cyberspace, after she says the Department of Justice did not respond to a public records request for the data. Citron found 10 cases between 2009 and 2012. The new data lends support to that number. The Department of Justice filed 3 cyberstalking cases each year in FY 2012 and 2013, for example.

The number of federal cyberstalking cases has climbed steadily over the past five years, with 19 cases against 22 defendants in FY 2016—the latest year for which the Department of Justice had a complete year of data. But even that number is low compared with the overwhelming scope of the problem, according to experts.

A survey released last year by the Data & Society Research Institute found that 36 percent of internet users have been stalked, threatened, or called an offensive name online. A 2014 survey by the Pew Forum found that about 18 percent of internet users have experienced physical threats, sustained harassment, stalking, or sexual harassment.

Severe online harassment has a greater impact on women, people of color, and LGBTQ people, the Data & Society survey found. Just 8 percent of all internet users have been stalked online, for example, but that number jumps to 20 percent for women between the ages of 15 and 29.

“The number of people who, in a typical study, say, ‘Listen, I’ve experienced this kind of behavior,’ is really high,” Franks said. “And these [prosecution] number are very low.”

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ThinkProgress requested the newly published data last year after the FBI and the Department of Justice failed to provide the same data to Clark, whose office first requested it in October 2014. Clark sent an open letter to then-Attorney General Loretta Lynch last September that called the Justice Department’s 22-month delay in providing the data “troubling.”

The Justice Department sent Clark’s office partial data in January, in a letter shared exclusively with ThinkProgress. The department provided Clark’s office with more complete data in a second letter, also shared with ThinkProgress, in May.

Clark has long been an advocate for victims of online abuse. Last year, she sponsored legislation that would have required the FBI and the Department of Justice to publish data about online crimes that target individuals. That bill died in committee, but Clark included the same measures in an omnibus cybercrime bill she introduced in June that would also increase the resources available to federal, state, and local law enforcement for pursuing these crimes.

“It is critical that federal law enforcement rigorously investigate and prosecute these cases because these online crimes often occur anonymously and across state lines beyond the reach of local police,” Clark told ThinkProgress in a statement. “The data provided by the Department of Justice demonstrates it is failing victims who have nowhere else to turn. I introduced the Online Safety Modernization Act to ensure the Department of Justice has the tools and resources necessary to keep families safe in the age of smartphones and social media.”

ThinkProgress filed a public records request for correspondence between Clark’s office and the Department of Justice over the 31 months between when Clark first requested prosecution data and when the department complied. The department says it is still processing that request.

The data that the Justice Department sent Clark on online threat prosecutions matches the data it provided to ThinkProgress. However, the data it sent Clark on cyberstalking prosecutions differs from what it sent ThinkProgress across the board. A spokesperson for the Department of Justice did not return multiple requests for comment on the apparent discrepancy.

In its two letters to Clark, the department argued that the number of cyberstalking and online threat prosecutions does not accurately reflect its overall prosecution of those crimes. The data includes only cases where cyberstalking or online harassment were the first charge listed in the indictment, the department said, and prosecutors may bring charges for cyberstalking or online threats under several federal statutes.

The letters did not provide any data for the number of prosecutions under other federal statutes that the department said it may bring charges under, however, and experts who spoke to ThinkProgress were skeptical of that explanation.

“That’s bullshit, frankly,” Citron said. “I’ve heard that story, too, and I just want to know what [other] statutes [they’d use instead].”

The data provided to ThinkProgress and Clark only accounts for two specific subsections of federal law—18 U.S.C. § 2261A(2) and 18 U.S.C. § 875(c). In its first letter to Clark, however, the Justice Department said its staff often enter only the section, rather than the subsection, into the department’s case tracking system. That means department statistics on prosecutions for a specific subsection could undercount the total number of prosecutions for that subsection.

A 2016 Department of Justice bulletin shows 97 cases filed under 18 U.S.C. § 2261A and 509 filed under 18 U.S.C. § 875 from FY 2010 to FY 2015. The bulletin shows another 33 cases filed under 47 U.S.C. § 223, the federal statute against obscene or harassing phone calls, during that same time period.

Experts who spoke to ThinkProgress attributed the low number of prosecutions to a variety of factors, including a lack of resources to pursue these types of crimes, poor training among law enforcement, and the low priority that prosecutors and law enforcement have traditionally placed on crimes that primarily affect women and minorities, and in which the impact can be hard to quantify.

“[T]here is kind of a sticks-and-stones-ism when it comes to the priorities of federal law enforcement,” Andrew Sellers, director of the Technology and Cyberlaw Clinic at Boston University, said in an interview. “They look more to enforce crimes that involved physical harm or theft than they do emotional harm. There’s a longstanding discounting of emotional harm, and that’s unfortunate.”

There’s some evidence that could be changing. The number of federal prosecutions for cyberstalking rose from 9 in FY 2015 to 19 in FY 2016 — an increase of 111 percent. And a 63-page Justice Department bulletin for U.S. attorneys, published last May, was dedicated to prosecuting online crimes like stalking, threats, “sextortion,” and revenge porn.

The spike in cyberstalking prosecutions in 2016 does not appear in the data that the Justice Department provided to Clark’s office, however, and a department spokesperson did not return multiple requests for comment on the apparent discrepancy.

“It took a long time for there to even be crimes against domestic violence,” Franks said. “The formal recognition is just the first stage. Getting law enforcement to take it seriously, and to treat it as seriously as a property crime, is another thing entirely.”

The data published with this story is available at GitHub. The documents are available at DocumentCloud.

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