Combating Cyberbullying: Emphasizing Education over Criminalization

I. INTRODUCTION II. DEFINING CYBERBULLYING III. UNITED STATES V. DREW A. Legal Cause of Action 1. The Computer Fraud and Abuse Act 2. The MySpace Terms of Service B. Lori Drew's Prosecution and Acquittal IV. CRIMINALIZING CYBERBULLYING THROUGH LEGISLATION A. State Cyberbullying Laws B. The Megan Meier Cyberbullying Prevention Act 1. Avoiding Overcriminalization: Carefully Criminalizing Only Criminal Acts 2. Safeguarding First Amendment Freedoms 3. Relying on Prosecutorial Discretion C. Enforcing Cyberbullying Law 1. Prosecuting the Practical Joke: Elizabeth Thrasher 2. Shifting From the Principal's Office to Juvenile Court V. PREVENTION THROUGH EDUCATION A. Student Internet Safety Act of 2009 B. Funding Educational Efforts: AWARE and SAFE Internet Acts C. Post-Legislative Education Efforts VI. CONCLUSION I. INTRODUCTION A new form of cyberbullying, or bullying that takes place on the Internet, (1) emerged in 2006 when Loft Drew used the online social networking tool MySpace to harass Megan Meier, a resident of Dardenne Prairie in suburban St. Louis. (2) Thirteen-year-old Megan's story is unique because Drew was an adult--the mother of another preteen girl. (3) The cyberbullying began when Drew used MySpace to create a fictitious profile for a sixteen-year-old named "Josh Evans" on September 20, 2006. (4) It ended a few weeks later when Megan hanged herself in her closet in response to Josh's suggestion that the world would be a better place without her. (5) In addition to the fact that Drew's example involved an adult bullying a minor, this situation is unique because Drew's actions were criminally prosecuted in federal court. (6) Since Drew's use of MySpace to create a fake profile and harass another member violated the MySpace Terms of Service, she was prosecuted for violating the Computer Fraud and Abuse Act (CFAA). (7) Though Lori Drew was the adult perpetrator of one of the most extreme examples of cyberbullying, the fact that no criminal law specifically prohibited her behavior does not justify stretching the CFAA or passing new legislation that defines cyberbullying as a new crime. However, federal legislation that combats cyberbullying through educational initiatives would have a positive impact. This Note will define and introduce extreme examples of cyberbullying in Part II. In Part III, this Note will focus on the criminal prosecution and acquittal of Lori Drew in response to her extreme cyberbullying actions. Part IV will examine how public outcry in response to extreme cyberbullying incidents has prompted both state and federal legislators to take action, including proposals to impose criminal sanctions against cyberbullying. Considering the positive and negative effects of the efforts to combat cyberbullying so far, this Note will argue in Part V that prevention through education will be the most effective solution. Since educational efforts do not include the possible negative consequences of imposing criminal anticyberbullying sanctions, increased Internet safety educational efforts address cyberbullying positively, by empowering educators with the necessary tools to inform students and parents about how to use ever-changing technology wisely and safely. II. DEFINING CYBERBULLYING Minors' general innocent and naive nature, when combined with the environment of the Internet, creates a fertile atmosphere for bullying, especially since parents can be ignorant of their children's behavior and the dangers involved. (8) In describing the practical effects of these dangers, David Frey, Staten Island assistant district attorney and chief of the computer and technology investigations unit, noted, "[u]nfortunately, many people have trouble living by [the Golden] rule, and when being unkind is taken to the Internet, police and prosecutors are often called on to step in. …