Cyberbullying ordinances provide alternatives to state prosecution

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Limited by the state’s options for legally pursuing cyberbullying, Wisconsin municipalities are turning toward local ordinances to deal with increased computer-based threats.

The Fort Atkinson City Council is set to consider at its June 7 meeting an ordinance that would give local police the ability to issue $50 citations to citizens who send threatening electronic messages. The measure would provide an alternative to pursuing criminal charges through the state, Fort Atkinson Councilman Dick Schultz said.

“The only two options right now are to charge someone criminally, or not at all,” he said. “Even if it’s a criminal charge, the district attorney’s office might be so buried, the case may never go anywhere and the victim doesn’t get closure.”

Wisconsin does not have a specific cyberbullying statute, but the state’s Chapter 947 provides penalties for unlawful use of computerized communication systems. Anyone who sends an electronically-based message with the intent to “frighten, intimidate, threaten, abuse or harass another person” is subject to a misdemeanor, a criminal charge.

Wisconsin Department of Justice spokesperson Dana Brueck acknowledged cyberbullying was a growing concern and said the state was looking at whether its law should be more specific.

“Given the recent attention to this issue, we are analyzing it,” Brueck said. “We’re looking at current statutes to determine if they’re adequate to address the conduct that is causing concern. If we conclude that they don’t address such conduct, we may look at proposing some revisions to current statutes, or some new statutes.”

No changes are imminent, however, she said.

In the meantime, municipalities such as the city of Jefferson, about six miles north of Fort Atkinson, are moving forward with their own means of combating cyberbullying. Fort Atkinson instituted two ordinances in January making it illegal to “frighten, intimidate, threaten, abuse or harass another person,” through an electronically sent message or via telephone.

Since the ordinance took effect, Police Chief Gary Bleecker said his department had received seven complaints. He did not know how many of those warranted citations, which in the city are $114 for the first offense and $177 for subsequent infractions.

“What we’ve tried to do with the ordinance is use it as a warning for people,” he said. “Rarely has it resulted in a citation, but we feel for a criminal offense, it has to rise to the degree of a threat of bodily harm or to someone’s life.”

The ordinances are an alternative to the state law, which Jefferson County District Attorney Susan Happ said she used eight times to prosecute cases since she took the post in 2008. Although the volume of cases pursued under state law hasn’t overburdened her office, she said, the ability to end lower level incidents at the city level will allow her to focus on other cases instead.

“The nice thing about those forfeitures is that they can be used for the minor harassment offenses,” Happ said. “I’d imagine municipalities might be issuing a lot more of those and we won’t see them.”

That’s the idea with the Fort Atkinson ordinance, as well, Schultz said. A localized approach would give law enforcement a tool to deter online misbehavior, he said, short of arrest.

Not all Fort Atkinson council members support the proposal, however. Councilman John Mielke acknowledged the use of social networking tools such as Facebook and Twitter had increased the opportunity for profane or aggressive online attacks, but he questioned how they effectively could be policed at the city level.

“If two adults want to engage in less than social behavior online and as long as it doesn’t result in violence, I think they kind of have a right to do that,” Mielke said. “I dare say I’ve had calls from constituents that would probably be in violation of this ordinance.”

One of the rights of living in a free society, Mielke said, is the “right to be a jerk.”

Investigating electronic-based threats, especially at the city level, can pose logistical challenges, said Justin Patchin, co-director of the Cyberbulling Research Center, based out of the University of Wisconsin-Eau Claire.

He said nationally, city ordinances dealing with cyberbullying are rare, in part because of the potential resources needed to investigate violations.

“In terms of electronic discovery, like getting emails or subpoenaing Facebook for information to make a case for electronic harassment,” he said, “it can take a substantial amount of work to get that evidence.”

Jefferson City Attorney Ben Brantmeier said his office hasn’t had a case that required electronic discovery of records under the city’s ordinance, but said it wouldn’t be a problem if one did.

“If I do this work or the police department does this work, and we end up with a $114 citation and spend considerably more of our time or a higher dollar amount,” Brantmeier said, “that’s the nature of general deterrence.”

Happ said municipal ordinances wouldn’t diminish the importance of cyberbullying cases that were referred to her office, but they could change the type of cases she saw.

“If someone gets a citation, it will put them on the radar,” Happ said. “So if I get a criminal referral and I see the person has a previous citation, that is going to be a red flag for me.”