NY State Legislators Unanimously Pass A Cyberbullying Bill That Can't Be Bothered To Define Cyberbullying [Update]

from the passed-without-an-ounce-of-credibility-or-sincerity dept

Thu, Jun 7th 2018 9:39am — Tim Cushing

Update: Eugene Volokh points out (via email) that there is a definition of cyberbullying on the books in New York state. The bill does not reference it, however. This bill appends Section 12a to Section 12, which is part of the state's consolidated education law. Section 12 says "no student will be subjected to harassment or bullying by employees or students on school property or at a school function." There's still no definition here of bullying or cyberbullying, nor is there anything pointing to the state's definition of these terms. To find a definition, readers must look to Section 11 (again, not mentioned anywhere in the new bill), which is another part of the state's education laws. This is how that section defines cyberbullying:

“Harassment” and “bullying” shall mean the creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying, that (a) has or would have the effect of unreasonably and substantially interfering with a student's educational performance, opportunities or benefits, or mental, emotional or physical well-being; or (b) reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety; or (c) reasonably causes or would reasonably be expected to cause physical injury or emotional harm to a student; or (d) occurs off school property and creates or would foreseeably create a risk of substantial disruption within the school environment, where it is foreseeable that the conduct, threats, intimidation or abuse might reach school property. Acts of harassment and bullying shall include, but not be limited to, those acts based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex. For the purposes of this definition the term “threats, intimidation or abuse” shall include verbal and non-verbal actions.

This definition helps, but it's still an unconstitutional proposal. What might have been limited to acts on school property or those resulting in disruption is now being spread to cover the act (as defined here) anywhere it takes place. Criminalizing the act takes it a step further than it should be taken, and in doing so, infringes on protected speech. Volokh's post give several examples of protected speech that would be considered a criminal act if the law goes into effect. Here are just a couple of them:

[3.] A popular local blogger harshly condemns an under-18-year-old accused of crime, calling him a thug or other words that are viewed as "verbal abuse." The blogger knows that opinion among high schoolers about the accused criminal is sharply divided (perhaps on ethnic, racial, or religious lines), with some people stridently defending him and others condemning him. The article is foreseeably read on school property, as students pull it up on their phones or computers. The article also foreseeably leads some students to again condemning the accused criminal, and others to defend it; foreseeably, a fight breaks out, or threatens to break out, which means the article "foreseeably create[d] a risk of substantial disruption within the school environment." The blogger is a criminal.

[4.] An under-18-year-old high school student becomes a nationally known activist, for instance for gun control or transgender rights or some such. People repeatedly mock his arguments online, and condemn his as an idiot, which a prosecutor thinks is "verbal abuse" and "would reasonably be expected to cause ... emotional harm" to him. The people can be prosecuted, and will be convicted if the jury agrees with the prosecutor.

Tl;dr: I screwed up. It is defined elsewhere in the state's statutes. Unfortunately, there's no acknowledgment of that fact in the bill's wording. It simply assumes everyone knows what cyberbullying is and what is covered under that definition. I can assure you many of those voting for the bill are likely unaware of how much protected speech this bill targets.

New York state legislators are back at it, attempting to tackle cyberbullying with a "new" law. In reality, this would be the legislature's fifth attempt to enact an anti-cyberbullying law. New York attorney Eric Turkewitz was the first to catch the New York's Senate's self-congratulatory tweet. The tweet touted the bill's unanimous passage (a 56-0 vote). But "widespread support" isn't synonymous with "well-crafted law." No state senator wants to appear "soft" on bullying, so the law passes without anyone bothering to ascertain its effectiveness, much less its constitutionality.

For an anti-bullying law to survive a constitutional challenge, it must be exceedingly well-crafted and narrowly-defined. This bill -- with 56-0 support -- has none of that. From Turkewitz's post on the bill:

Just one teensy little problem seems to have escaped the drafters, however. This “cyber-bullying” that they wish to make a misdemeanor has a flaw. I’m almost embarrassed to mention it, but here goes.

Cyber-bullying doesn’t seem to have a definition.

It doesn't. Once you get past the full page of preamble explaining why such a law is needed, you run into this, which defines nothing but who would be protected by the law.

S 12-A. CYBERBULLYING. 1. AS USED IN THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:

A. MINOR SHALL MEAN ANY NATURAL PERSON OR INDIVIDUAL UNDER THE AGE OF EIGHTEEN.
B. PERSON SHALL MEAN ANY NATURAL PERSON OR INDIVIDUAL.

ANY PERSON WHO KNOWINGLY ENGAGES IN A REPEATED COURSE OF CYBERBULLYING OF A MINOR SHALL BE GUILTY OF AN UNCLASSIFIED MISDEMEANOR PUNISHABLE BY A FINE OF NOT MORE THAN ONE THOUSAND DOLLARS, OR BY A PERIOD OF IMPRISONMENT NOT TO EXCEED ONE YEAR, OR BY BOTH SUCH FINE AND IMPRISONMENT.

This act shall take effect immediately.

Up to one year in prison based on a definition apparently to be determined post-arrest by prosecutors or presiding judges. And, apparently, cyberbullying ends once the victim turns 18, so there's no need to extend this dubious protection to adults.

State lawmakers should know better. First, they should know laws attempting to regulate speech must be particular and explicit in their definitions of the prohibited speech. Second, the justification for regulating speech must clearly and heavily outweigh the negative repercussions of the government's act of censorship. All this law has is a statement saying schools are powerless to stop cyberbullying that occurs off campus. That's not nearly enough justification to start handing out misdemeanor charges to mean people.

There have been better-defined bills passed in the state of New York. The county of Albany actually took the trouble to define the terms central to the law.

1. "any act of communicating … by mechanical or electronic means,”

2. “including posting statements on the internet or through a computer or email network,”

- “disseminating embarrassing or sexually explicit photographs;”

- “disseminating private, personal, false or sexual information,”

- “or sending hate mail,”

3. ”with no legitimate private, personal, or public purpose,”

4. “with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.”

This definition is 73 words longer than the state senate's definition of "cyberbullying" and it still couldn't beat a Constitutional challenge. The state's highest court shut down enforcement of the law, noting that its definitions would "criminalize a broad spectrum of speech outside the popular understanding of cyberbullying."

On its fifth attempt to push through anti-cyberbullying legislation, the state senate can't even be bothered to craft a definition narrow enough to be rejected by the state's courts, much less one that would survive even the most cursory challenge.

A bill like this -- one that's seen four previous attempts -- serves one purpose. And it's got nothing to with the children we're always supposed to be thinking about. Here's Scott Greenfield's take:

[T]his law is just a cynical attempt to game the emotions of the electorate, as it has absolutely no chance of passing constitutional muster. The senators didn’t even give it a try, and as much as they may not be the sharpest knives in the legislature, even they know that you can’t criminalize cyberbullying by defining it as cyberbullying.

The proposed law is electioneering dressed up to look like empathethic legislation. It's multiple campaign efforts being funded by taxpayers who not only pay the salaries of legislators who can't be bothered to do their job properly, but will also be on the hook for legal fees if the bill becomes law and has to be defended in court. When one of these partners in unanimous useless ask for donations during the next election run, point to bullshit like this and tell them you gave at the office.

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Filed Under: cyberbullying, definitions, new york

38 Comments

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Gary (profile), 7 Jun 2018 @ 8:29am

...Something
We have to do *Something*!
Well failing is something, isn't it?
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Anonymous Coward, 7 Jun 2018 @ 9:54am

We could be generous and assume that this law is the work of a handful of smart senators that realized there is no such thing as a good cyberbullying bill. They created a nothing law to prevent their colleagues from creating a truly damaging law.
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Anonymous Coward, 7 Jun 2018 @ 10:05am

Re:
How may people will be charged under this law because some police officer calls what they posted online cyberbullying? How many of those will be railroaded into a plea bargain?
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Annonymouse, 7 Jun 2018 @ 10:14am

Before the LEOs get their grubby paws on thus to bash someone upside the head can someone think of a way to turn this around and point it at the senate when it goes off? All for the greater good of course. Maybe a kickstarter to kick em in the kojones with this?
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Anonymous Coward, 7 Jun 2018 @ 10:15am

The definition of "person" though, gives Corporations LICENSE!
Note how that's defined as "natural" person or individual.

This is only ongoing corporatism to regulate YOU.

Alternate but also valid take:

"Cyberbullying" is well enough known now that doesn't need definition, any more than does "network". It's a form of assult through a network. I know it when see / experience, and will the good persons of a jury, even though you netwits can't even imagine it.
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John Smith, 7 Jun 2018 @ 10:16am

No one is considering the long-term problems created by Section 230, including total lack of privacy and just about everyone we meet becoming a privacy risk and refusing to mitigate that risk. People aren't even aware of what they've lost because they never had it in the first place. The internet has turned everyone into know-it-all narcissists who put themselves at risk while patting themselves on the back for being smart when the opposite is the case.

Cyberbullying shouldn't exist. Websites should be liable under a number of laws including product-liability but we refuse to enforce the laws. This has turned the world into the same jungle as a school which ignores bullying, yet some people want to treat it as if it were still civilized. The smarter people work around this and leave the less aware out in the cold, wondering why all the awful stuff their arrogance and intransigence caused is wreaking such havoc on their lives.

People who think the internet is more important than individual human rights should be stripped of their own.
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Anonymous Coward, 7 Jun 2018 @ 10:20am

Re: The definition of "person" though, gives Corporations LICENSE!
By the way, at least SECOND zombie attack this week! Just look at this "account", back after 33 months:

https://www.techdirt.com/user/pacanukeha

>>> Zombies, of course, are not illegal (being citizens, literally born from the very soil!), and would be exempt from the above definition of who could be charged with this. Anyway, beware!
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Anonymous Coward, 7 Jun 2018 @ 10:26am

Re: The definition of "person" though, gives Corporations LICENSE!

I know it when see / experience

But will the speaker and the person/people they are speaking to consider it bullying. If they don't, acting on your decision it is outright censorship.
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Anonymous Coward, 7 Jun 2018 @ 10:38am

Re: Re: The definition of "person" though, gives Corporations LICENSE!
Breaking News:

You still don't know how normal people use accounts.
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Anonymous Coward, 7 Jun 2018 @ 10:39am

Re:
Yeah, you definitely seem reasonable.
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John E Cressman, 7 Jun 2018 @ 10:45am

No News
Politicians are morons... old news...
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I.T. Guy, 7 Jun 2018 @ 10:57am

Re: Re: Re: The definition of "person" though, gives Corporations LICENSE!
It's because he is a multiple account troll. He has many that he has not signed on to in months. So for him anything that shows up that's old MUST be like him.
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Anonymous Coward, 7 Jun 2018 @ 11:07am

Isn't this it here? .. a (PDF) excerpt of Bill S2318:
6 S 2803. CYBER-BULLYING. 1. AS USED IN THIS SECTION, THE FOLLOWING 7 TERMS SHALL MEAN AS FOLLOWS: 8 A. CYBER-BULLYING SHALL MEAN ENGAGING IN A REPEATED COURSE OF COMMUNI- 9 CATION, OR REPEATEDLY CAUSING A COMMUNICATION TO BE SENT, BY MECHANICAL 10 OR ELECTRONIC MEANS, POSTING STATEMENTS ON THE INTERNET OR THROUGH A 11 COMPUTER NETWORK WITH NO LEGITIMATE COMMUNICATION PURPOSE WHICH CAUSES 12 ALARM OR SERIOUS ANNOYANCE, OR IS LIKELY TO CAUSE ALARM OR SERIOUS 13 ANNOYANCE.

source: http://legislation.nysenate.gov/pdf/bills/2017/s2318
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discordian_eris (profile), 7 Jun 2018 @ 11:12am

Their problem is that they are so used to simply being handed pre-written bills by their 'sponsors' that they have forgotten how to write a bill.
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Rekrul, 7 Jun 2018 @ 11:13am

Re:
I suppose you also want to make the post office liable for anything illegal sent through the mail, and the state liable for any crimes committed using the highway?
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Rekrul, 7 Jun 2018 @ 11:17am

Maybe they figure if they don't define cyberbullying, it won't be struck down because they can just argue that the wise prosecutors will use the utmost discretion in applying it. Like with pornography, they'll know it when they see it. I mean that's worked out pretty well so far...
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Anonymous Coward, 7 Jun 2018 @ 11:34am

Re: Isn't this it here? .. a (PDF) excerpt of Bill S2318:
That definition could be applied to a lot of advertising on the Internet, especially things like autoplay videos.
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Anonymous Coward, 7 Jun 2018 @ 11:35am

Re: Isn't this it here? .. a (PDF) excerpt of Bill S2318:
Then, what does "legitimate" mean? Do we want the government determining which speech is legitimate?
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JoeCool (profile), 7 Jun 2018 @ 11:53am

Re: ...Something
They're doing something - they're wasting taxpayers' money. In fact, paying these idiots a salary is wasting taxpayers' money.
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Anonymous Coward, 7 Jun 2018 @ 12:04pm

Re: Isn't this it here? .. a (PDF) excerpt of Bill S2318:

Isn't this it here?

No. You appear to be linking to an earlier version of the bill.

See the active New York Senate Bill S2318A, which passed Senate on June 4, 2018. (PDF.)
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Toom1275 (profile), 7 Jun 2018 @ 12:05pm

Re:
How, exactly, can anyone possibly consider problems that don't exist outside your head?
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Anonymous Coward, 7 Jun 2018 @ 12:11pm

Re: Re: ...Something
Perhaps in some ways it's not unlike all those Congressional Resolutions that are just "virtue signaling" exercises that serve no tangible purpose.

But whether or not it ultimately survives a future court challenge, this is a real law with real teeth:

ANY PERSON WHO KNOWINGLY VIOLATES THE PROVISIONS OF THIS SECTION SHALL BE GUILTY OF AN UNCLASSIFIED MISDEMEANOR PUNISHABLE BY A FINE OF UP TO ONE THOUSAND DOLLARS AND/OR UP TO ONE YEAR IMPRISONMENT.

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Anonymous Coward, 7 Jun 2018 @ 12:25pm

Re: Re: Isn't this it here? .. a (PDF) excerpt of Bill S2318:
Thanks. It seems like a lot of the bill's original text just dropped off the page, including this legal boilerplate:

IF ANY CLAUSE, SENTENCE, PARAGRAPH OR PART OF THIS SECTION SHALL BE ADJUDGED BY ANY COURT OF COMPETENT JURISDICTION TO BE INVALID, SUCH JUDGMENT SHALL NOT AFFECT, IMPAIR OR INVALIDATE THE REMAINDER THEREOF, BUT SHALL BE CONFINED IN ITS OPERATION TO THE CLAUSE, SENTENCE, PARAGRAPH OR PART THEREOF DIRECTLY INVOLVED IN THE CONTROVERSY IN WHICH SUCH JUDGMENT SHALL HAVE BEEN RENDERED.

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Gary (profile), 7 Jun 2018 @ 12:51pm

Re: 230
More 230 FUD. 230 is based on court rulings that held ISP liable because it moderated, which directly led to a lack of moderation. "If we didn't read it, it didn't happen."
By your reasoning, all email and texting should be banned because it violates human dignity.
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Anonymous Coward, 7 Jun 2018 @ 2:08pm

Re:
So what you are actually saying is that third parties should be held responsible for not stopping people being nasty to each other. I have news for you, even if you eliminated all forms of of communication that are not face to face, some people will be nasty to other people, and then who do you blame for it, the nearest person not involved in the nastiness.
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A voice in the crowd. (profile), 7 Jun 2018 @ 3:25pm

It's easy, you'll know it when you see it.
"Hey laser lips, your mother was a snow blower!"
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Anonymous Coward, 7 Jun 2018 @ 4:34pm

Junior scribe missed the insert again...
So obviously the junior scribe missed inserting his 'clause' after the vote but before the publishing of the law.

There was supposed to be a statement something to the effect of, "Police and Prosecutors are free to amend or revise the definition of "Cyber" (could include paper and pencil, spray paint, etc) and "Bullying" (could include looking cross eyed at officer, sticking your tongue out, or talking sternly to someone). By clicking accept on this law, you agree that the terms and conditions used to persecute (yes that's the right word) you are valid and you accept them (failure to accept these terms will result in your removal from the state of new york and the forfeiture of your first born son).
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Anonymous Coward, 7 Jun 2018 @ 5:07pm

Re: Re: Re: ...Something
Seems like this would be easy to beat in court. If you can't define the crime how can you commit it?
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Anonymous Coward, 7 Jun 2018 @ 5:12pm

Re: It's easy, you'll know it when you see it.
I live in NY. See you in court.
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Anonymous Coward, 7 Jun 2018 @ 11:29pm

Can I define net neutrality repeal as cyberbullying?

Hey, if forever minus a day can be defined as "limited"... (Which it isn't, of course. In the same way that infinity + 1 = infinity because there is an endless line of numbers, infinity - 1 would still be infinity. Not that you'd ever get the copyright nutjobs to admit that.)
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PaulT (profile), 8 Jun 2018 @ 2:24am

Re: Re: The definition of "person" though, gives Corporations LICENSE!
Considering his constant lies and personal attacks on people on this site, I'd say he neatly fits the definition of a cyberbully himself. By his own definition, he can't even argue with that statement, because we all know it when we see it!
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PaulT (profile), 8 Jun 2018 @ 2:28am

Re: Re: Re: Re: The definition of "person" though, gives Corporations LICENSE!
When you can't refute the words being said, attack the person saying them. The fact that he does this so often is a clear indicator that he can't refute the truth of the comments being made. As is the poor quality of the attack angle he's chosen.
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Wendy Cockcroft, 8 Jun 2018 @ 5:55am

Re: Re: Isn't this it here? .. a (PDF) excerpt of Bill S2318:
Or political ads. Especially political ads. I find them very annoying.
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Wendy Cockcroft, 8 Jun 2018 @ 5:58am

Would IPR trolling fall under this law?
You know, the kind of speculative invoicing with malice aforethought and associated threats that people like regular commenter That Anonynous Coward are subjected to?

I'd call that "Cyberbullying."

I can see that law disappearing off the books pretty damn quick if anyone reported the likes of Malibu Media for violating it.
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Bergman (profile), 8 Jun 2018 @ 6:15am

Re:
Unfortunately, you have to be well over 18 to be a Senator, and this only applies to those under 18. It's a fun thing to think about, but a better law to aim at almost any public official is this one:

https://www.justice.gov/crt/deprivation-rights-under-color-law
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Bergman (profile), 8 Jun 2018 @ 6:18am

Re: Re: Isn't this it here? .. a (PDF) excerpt of Bill S2318:
Any attempt by the government to define speech as illegitimate will result in a constitutional curbstomp.
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Anonymous Coward, 13 Jun 2018 @ 8:39am

Follow-up, why Techdirt opposes cyberbullying bill: Israel.
UC Davis students fight back against Canary Mission

Students at the University of California, Davis are fighting back against threats and cyberbullying by Canary Mission, a shadowy website that aims to tarnish the reputations of educators and students who speak out for Palestinian rights and compromise their future careers.

https://electronicintifada.net/blogs/nora-barrows-friedman/uc-davis-students-fight-back-aga inst-canary-mission

Techdirt ALWAYS sides with Israel simply by not reporting on it. What you DON'T see written of here is the most important aspect.
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PaulT (profile), 13 Jun 2018 @ 9:43am

Re: Follow-up, why Techdirt opposes cyberbullying bill: Israel.
Meh, you need to step up your game. There's a new conspiracy nut in town and he's getting entertainment bites without even having to link to whatever random blog is telling him what to think.

"Techdirt ALWAYS sides with Israel simply by not reporting on it"

I've never seen you mention ETA, the IRA or FARC, therefore you side with them. Hmmm...

"What you DON'T see written of here is the most important aspect."

Yes, I've never seen an update on the latest episode of Love Island, so that must be something important. Or, I've never seen fashion tips so it's all a CONSPIRACY to hide them from you!

Do you apply this logic to all sites, or just blogs that average less than 10 posts a day, and thus by definition won't cover everything and allow you to apply any theory you wish?
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