[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
CYBERBULLYING AND OTHER ONLINE SAFETY ISSUES FOR CHILDREN
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
H.R. 1966 and H.R. 3630
SEPTEMBER 30, 2009
Serial No. 111-76
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida STEVE KING, Iowa
STEVE COHEN, Tennessee TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr., LOUIE GOHMERT, Texas
Georgia JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico TED POE, Texas
MIKE QUIGLEY, Illinois JASON CHAFFETZ, Utah
LUIS V. GUTIERREZ, Illinois TOM ROONEY, Florida
BRAD SHERMAN, California GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York
Perry Apelbaum, Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
Subcommittee on Crime, Terrorism, and Homeland Security
ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman
PEDRO PIERLUISI, Puerto Rico LOUIE GOHMERT, Texas
JERROLD NADLER, New York TED POE, Texas
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee TOM ROONEY, Florida
ANTHONY D. WEINER, New York
DEBBIE WASSERMAN SCHULTZ, Florida
MIKE QUIGLEY, Illinois
Bobby Vassar, Chief Counsel
Caroline Lynch, Minority Counsel
C O N T E N T S
SEPTEMBER 30, 2009
H.R. 1966, the ``Megan Meier Cyberbullying Prevention Act''...... 4
H.R. 3630, the ``Adolescent Web Awareness Requires Education
(AWARE) Act''.................................................. 8
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Chairman, Subcommittee
on Crime, Terrorism, and Homeland Security..................... 1
The Honorable Louie Gohmert, a Representative in Congress from
the State of Texas, and Ranking Member, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 19
The Honorable Linda T. Sanchez, a Representative in Congress from
the State of California
Oral Testimony................................................. 21
Prepared Statement............................................. 24
The Honorable Debbie Wasserman Schultz, a Representative in
Congress from the State of Florida
Oral Testimony................................................. 33
Prepared Statement............................................. 35
Mr. Robert M. O'Neil, Law Professor Emeritus, University of
Virginia, Charlottesville, VA
Oral Testimony................................................. 38
Prepared Statement............................................. 41
Ms. Judi Westberg Warren, President, Web Wise Kids, Santa Ana, CA
Oral Testimony................................................. 47
Prepared Statement............................................. 49
Mr. Harvey A. Silverglate, Attorney, Zilkind, Rodriguez, Lunt &
Duncan, LLP, Cambridge, MA
Oral Testimony................................................. 56
Prepared Statement............................................. 58
Ms. Nancy Willard, M.S., J.D., Director, Center for Safe and
Responsible Internet Use, Eugene, OR
Oral Testimony................................................. 102
Prepared Statement............................................. 107
Mr. John Palfrey, Law Professor, Harvard Law School, Cambridge,
Oral Testimony................................................. 126
Prepared Statement............................................. 128
Material Submitted for the Hearing Record........................ 145
CYBERBULLYING AND OTHER ONLINE SAFETY ISSUES FOR CHILDREN
WEDNESDAY, SEPTEMBER 30, 2009
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
The Subcommittee met, pursuant to notice, at 3:34 p.m., in
room 2141, Rayburn House Office Building, the Honorable Robert
C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
Present: Representatives Scott, Wasserman Schultz, Gohmert,
Staff Present: (Majority) Bobby Vassar, Subcommittee Chief
Counsel; Karen Wilkinson, Federal Public Defender Office
Detailee; Joe Graupensperger, Counsel; Veronica Eligan,
Professional Staff Member; and (Minority) Caroline Lynch,
Mr. Scott. The Subcommittee will now come to order.
I am pleased to welcome you today to the hearing before the
Subcommittee on Crime, Terrorism, and Homeland Security on
``Cyberbullying and Other Online Safety Issues for Children.''
The term ``cyberbullying'' has many different definitions
and can cover many different types of speech. It can consist of
rumors or lies, a publication of something meant to be private,
or the impersonation of another person. Or it can encompass
more problematic speech, involving threats, stalking, or
The cyberbully can reveal his or her identity or remain
anonymous. While perpetrators may appear anonymous, however,
reports indicate that targets often know who their perpetrators
are. And the perpetrators are often friends or, more likely,
The term ``cyberbullying'' commonly is used to refer to
communications among children and youth. Adults may be involved
in cyberbullying, either as bullies or targets, but studies
indicate that the majority of those involved in cyberbullying
are children and youth.
Bullying and harassment can occur both online and offline.
On the playground, bullying may take the form of pushing,
hitting, threatening, or other assaultive conduct. On the
Internet or on cell phones, bullying comes in the form of
speech. Targets of cyberbullying may also be targets of offline
bullying. One report found that over 42 percent of youth who
reported being cyberbullied also reported being bullied at
Because cyberbullying has no clear definition, it is
difficult to measure. Lack of an agreed-upon definition also
makes it difficult to compare studies or determine trends.
According to the Internet Safety Technical Task Force, directed
by the Berkman Center for Internet and Society at Harvard
University, bullying and harassment by peers are most
frequently threats that minors face both online and offline.
All seem to agree that cyberbullying and harassment happens
to a significant minority of youth. Bullying appears to be more
common than harassment. Sibling-based harassment also occurs,
with one study reporting that 30 percent of 7th- through 9th-
graders reported online victimization from a non-parent family
Some children and youth are involved in cyberbullying as
both victims and bullies. A recent study found that 27 percent
of girls who were bullied online retaliated back with their own
Much cyberbullying conduct is typical adolescent behavior,
but when it occurs online it is taken to a new level. Insults,
harassing, and bullying statements are broadcast to thousands
of others in seconds. Once it is out, statements cannot be
taken back. Cyberbullying can be devastating to youth and, for
some teenagers, can result in tragic endings, such as Megan
Unchecked, the problem of cyberbullying likely will only
grow worse. We have two bills before us today that take two
different approaches to the problem.
H.R. 1966, the ``Megan Meier Cyberbullying Prevention
Act,'' addresses the problem by creating a new Federal crime
prohibiting communications made with the intent to coerce,
intimidate, harass, or cause substantial emotional distress
that use electronic means to support severe, repeated, and
hostile behavior. The new crime provides for a felony penalty.
We want to do all we can do to protect our children and
youth, but we don't want the unintended consequences of
converting many of our youth into criminals, particularly
felons. The label ``felon'' lasts a lifetime, and we need to be
extremely careful before proceeding down this path.
Finally, as with any attempt to regulate speech, we must be
careful not to violate the constitutional right to free speech
and due process. So I look forward to hearing what our experts
have to say about these concerns.
H.R. 3630, the ``Adolescent Web Awareness Requires
Education Act,'' the ``AWARE Act,'' seeks to address the
problem of online safety issues for youth, including
cyberbullying, through education and prevention. It creates a
grant program to be implemented by the Attorney General in
accordance with best practices and authorizes $125 million for
grants to carry out Internet crime awareness and cyber-crime
While we don't have any bills before us that focus on how
technology companies can help with this problem, I am also
interested from hearing from our witnesses on this issue. We
may need to revisit the immunity portion of section 230 of the
``Communications Decency Act'' to determine whether the law
went too far in providing immunity to service providers who
intentionally allow or even encourage cyberbullying and
harassment to flourish on their sites.
This is a serious problem, and there is no easy solution.
And I appreciate the efforts taken by both the gentlelady from
California, Ms. Sanchez, and the gentlelady from Florida, Ms.
Wasserman Schultz, to address the problem. And I look forward
to hearing from our experts on how we can and should work
together to address the problem.
[The bills, H.R. 1966 and H.R. 3630 follow]:
Mr. Scott. I now recognize the Ranking Member of the
Subcommittee, the gentleman from Texas, Judge Gohmert.
Mr. Gohmert. Thank you, Chairman Scott.
As long as there have been children in this world, there
have been bigger, meaner children who pick on them. As a small
child, often the smallest in my class, youngest in my class in
elementary school and junior high, I certainly know about that
and about being picked on by bullies.
But when I was in school, the bully could be found in the
lunchroom or the school yard, teasing kids, pushing others, or
even taking things from them because they were big enough to do
so. Times have changed. Now we have chat rooms, social
networking sites, and use terms like ``cyberbullying'' and
``cyberstalking.'' It appears the school bully has found a new
According to the National Crime Prevention Council,
cyberbullying affects nearly half of all American teenagers.
Cyberbullies send mean text messages, broadcast insulting or
degrading comments on the Internet, and even post pictures of
the victim for others to see.
My own family has been bullied on the Internet by political
bloggers trying to hurt me and my family because of my
political positions. Liberal blogs have called me all kinds of
names and made efforts to harass me. Some letters to the editor
intended to intimidate and harass have been sent by e-mail. So
perhaps this would be a way of stopping that.
But 13-year-old Megan Meier, we know her tragic case in
which she committed suicide after being told by a boy she had
been talking to on MySpace that the world would be a better
place without her. As we know, the boy, ``Josh,'' was really
the mother of one of Megan's classmates seeking retribution
against Megan for allegedly spreading rumors about the woman's
Ryan Patrick Halligan, also 13, committed suicide after
receiving taunting and insulting messages from his middle
school classmates questioning his sexuality.
These tragedies are symptomatic of a much larger problem.
Why do our teenagers and even their parents think this is
acceptable behavior? What are we teaching our young people in
our homes and schools about treating others with respect, as
you would want to be treated?
Today we will be examining two bills that seek to address
this new issue of cyber harassment. In the first, H.R. 1966, it
proposes a new Federal criminal offense for cyberbullying.
Under this law, a person could face up to 2 years in Federal
prison for sending a communication intended to coerce,
intimidate, harass, or cause substantial emotional distress to
This proposal raises several significant concerns, not the
least of which is its encroachment on protected speech. The
Supreme Court has identified those categories of speech that
fall outside the protections of the first amendment, including
fighting words, obscenity, or what the court characterizes as,
quote, ``true threats,'' unquote.
True threats of bodily harm are not protected. They are
already crimes. But statements intended to coerce, intimidate,
harass, or cause substantial emotional distress, however
unsavory, likely do not fall within the category of true
Moreover, are Federal criminal penalties warranted for
cyberbullying? Criminal law is or should be the purview of the
States because the Federal Government lacks a general police
power. As the Supreme Court noted back in 1903 in Champion v.
Ames, ``To hold that Congress has general police power would be
to hold that it may accomplish objects not entrusted to the
general government and to defeat the operation of the 10th
amendment.'' And, according to the Congressional Research
Service, 26 States have already enacted cyberbullying statutes,
the majority of which carry misdemeanor, not felony, penalties.
Unlike cyberstalking crimes, which typically involve a
credible threat of harm to the victim, cyberbullying does not.
Cyberbullying is characterized as intending embarrassment,
annoyance, or humiliation to the victim. This conduct is
deplorable, but the question is whether or not it is criminal.
Most cyberbullies are teenagers or middle-school-age
children. The legislation proposes sending these young people
to Federal prison for embarrassing or humiliating a classmate.
In fact, under-age cyberbullies tried under this statute would
most likely be adjudicated as juveniles and not tried as
adults. And since there is no juvenile detention facility in
the Federal system, these juveniles would be housed in State or
private detention facilities, if at all.
The second bill before us today, H.R. 3630, creates a new
grant program within the Justice Department to fund Internet
crime awareness and cybercrime prevention programs. But I have
to question whether a new grant program is what we really need.
A number of organizations with expertise in this area already
operate Web sites to combat cyberbullying. The tips and tools
offered by these sites are free to parents, teachers, and
H.R. 3630 requires the Justice Department to first
undertake a study on the nature, prevalence, and quality of
Internet crime awareness and cybercrime prevention programs.
Then the Department must consult with education groups,
Internet crime awareness, and cybercrime prevention groups and
prepare detailed guidance for the grant program. This seems
like a burdensome task, when we already have in place guidance
from organizations like the National Crime Prevention Council
The question is whether we need to spend another $125
million of Chinese money that we will have to borrow in order
to insert the Federal bureaucracy into a problem whose true
resolution begins at home. Congress should not try to replace
the parent or the teacher.
We are currently involved in a truly bipartisan effort that
includes efforts by the ACLU, with the Heritage Foundation and
Chairman Scott and I, attempting to begin dismantling the vast
overcriminalization under Federal law of between 4,000 and
5,000 Federal crimes.
Consider this: The playground still has bullies. When a
bully beats up a smaller student and the smaller student goes
home, gets on the Internet and says the playground bully is
mean, ugly, and stupid, it is the smaller student victim that
has now probably committed a Federal felony under this proposed
In our desire to address the problems of the day, Congress
all too often legislates without first getting to the bottom
about any unintended consequences and potential damages to the
What happened to Megan Meier and Ryan Halligan is tragic,
is devastating. But Federal legislation does not seem to be the
answer. Responsible parenting would be a good answer.
Accountability for our actions is the answer. Arming young
people with confidence and sense of self-worth to ignore the
school Internet bully may be the answer.
Although it is tempting because the proposal before us
would allow me to pursue and seek indictment and arrest for
mean-spirited liberals who have been exceedingly mean to me and
my family, it appears to be another chapter in
I look forward to the discussion on these issues, and yield
back the balance of my time.
Mr. Scott. Thank you.
We have two distinguished panels of witnesses here to help
us consider the issues today. Our first panel consists of
Members of Congress.
The first panelist is the gentlelady from the 39th District
of California, Representative Linda Sanchez. She is in her
fourth term and is a Member of the Judiciary Committee and the
Ways and Means Committee. She is a primary author of H.R. 1966,
the ``Megan Meier Cyberbullying Prevention Act.''
Our next panelist is the gentlelady from the 20th District
of Florida, Representative Debbie Wasserman Schultz. She is in
her third term and is a Member of the Judiciary Committee and
the Appropriations Committee, where she serves as Chair of the
Legislative Branch Subcommittee of the Appropriations
Committee. She is the lead sponsor of H.R. 3630, the ``AWARE
And our final panelist, we expected the gentleman from the
Seventh District of Texas, Representative John Culberson, but
he was unavoidably detained, and we will have his statement
entered into the record.*
*Due to unforeseen events prior to the hearing, Mr. Culberson did
not submit a statement to the Subcommittee.
Each witness' written statement will be entered in the
record in its entirety, so I ask our witnesses to summarize
your testimony in 5 minutes or less.
And we will begin with the gentlelady from California.
TESTIMONY OF THE HONORABLE LINDA T. SANCHEZ, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF CALIFORNIA
Ms. Sanchez. Thank you, Mr. Chairman and Ranking Member
Gohmert, for allowing me the opportunity to testify today about
this piece of legislation. I am pleased to be here talking
about the critical issue of child online safety because it is a
relatively new form for Congress to be grappling with.
When I was first elected to Congress, I held a series of
meetings with local school superintendents and law enforcement
leaders to learn more about the challenges that they face in
keeping kids in school and on the right track to becoming
productive citizens. And, unfortunately, I heard a recurring
theme during this series of meetings, and that is that bullying
isn't a harmless prank or some kind of right of passage; it is
dangerous, both physically and mentally, for students.
Bullying leads to things like poor school performance,
absences from school, or even dropping out of school
altogether. The prospect of assault and harassment can lead a
child to join a gang for protection. Not only can bullying
cause physical injuries in the form of wounds, bruises, and
broken bones, but it can also lead to depression and even
That is why I have been working to change Federal law so
that schools can use Federal funds to address and prevent
bullying and harassment. But over the last several years, I
have learned that that approach isn't going to be enough,
because bullying has gone electronic. It occurs in text
messages and G-chat, on Facebook and MySpace, on cell phones
and on the Internet. This literally means that kids can be
bullied any hour of the day and night and even in their own
homes, which is a marked contrast to the bullies of yesterday
that could only bully on the playground.
Today's kids are so wired into their electronic social
networks that they type more messages than they speak each day.
Their virtual world is more real to them than the so-called
``real world'' is. For those of us over 30, this can be
difficult to comprehend, so I want to give you an example to
illustrate the problem.
Imagine, if you would, in our day when we went to school, a
student brought out a jumbo-size TV into the school quad and
played for the entire student body a videotape in which he
threatened and harassed a second student. By the end of the
day, everyone--and I mean everyone--would have seen or heard
about it. Well, that is exactly what cyberbullying is.
Because of the anonymity and deception in the Internet,
this form of bullying is particularly dangerous. If Bobby posts
a video--and I don't mean the Chairman--on his Facebook page
that harasses and threatens to rape and kill Ashley, that video
isn't private. It is not buried on Bobby's profile page
somewhere. It is public. It appears when any of Bobby's
Facebook friends log in, right up there in front of their
homepage so they can't miss it. And this story isn't just
hypothetical. It happened to a brave young woman named Hail
Ketchum-Wiggins, who lives in southern California near my
Similar bullying incidents are happening every day to young
people across our Nation. Cyberbullying is always mean, ill-
mannered, and cruel, but some cyberbullying is so harmful that
it rises to the level of criminal behavior.
My bill, the ``Megan Meier Cyberbullying Prevention Act,''
is named to honor a young woman who was a victim of such
criminal behavior. Three years ago, 13-year-old Megan Meier of
Missouri hanged herself after being tormented and harassed by
her 15-year-old MySpace friend ``Josh.'' Josh told her, among
other things, ``The world would be better off without you.''
Eventually, Megan's family learned that ``Josh'' was really
a creation of Lori Drew, the parent of one of her classmates.
However, local prosecutors in Missouri couldn't bring charges
against Lori Drew because, at the time, Missouri had no law to
punish that kind of cruelty. A Federal prosecutor in a similar
bind got creative and charged Drew with computer fraud. And
even though a jury convicted her, a judge through out the
conviction. The result is that Drew, an adult and one who
should have been setting an example of good behavior, will
never be punished for her outrageous behavior toward her 13-
year-old victim, Megan.
These are just a few brief examples of why Congress needs
to address new crimes like cyberbullying. Words that didn't
even exist a couple years ago, including ``sexting'' and
``textual harassment,'' describe the new ways that people use
technology to hurt, harass, and humiliate others. When these
behaviors become serious, repeated, and hostile, we can no
longer ignore them and turn a blind aye.
While Missouri has since enacted a cyberbullying statute,
the children of other States are waiting for Congress to act.
That is why I am grateful that the Committee is considering the
``Megan Meier Cyberbullying Prevention Act.''
Before I conclude, I do want to acknowledge how difficult
it is to craft a prohibition on cyberbullying that is
consistent with the Constitution. But I believe that, working
together for the sake of our children, we can and must do so.
The Supreme Court has already recognized that some
regulation of speech is consistent with the first amendment.
For example, the Court has approved restrictions on true
threats, obscenities, and some commercial speech. But it has
been more hostile to attempts to limit political speech.
I don't intend anything in the ``Megan Meier Cyberbullying
Prevention Act'' to override Supreme Court jurisprudence.
Instead, I want the law to be able to distinguish between an
annoying chain mail, a righteously angry political blog post,
or a miffed text to an ex-boyfriend, all of which should remain
legal. But serious, repeated, and hostile communications made
with the intent to harm are different. When the latter rises to
a criminal level, as it did in the case of Lori Drew,
prosecutors should have a tool at their disposal to allow them
to punish the perpetrator.
I believe that we can protect our right to free speech and
protect victims of cyberbullying at the same time. And I look
forward to working with my colleagues on both sides of the
aisle to do so. I thank you for the opportunity to testify
today and hope that you will join me in supporting that
[The prepared statement of Ms. Sanchez follows:]
Prepared Statement of the Honorable Linda T. Sanchez,
a Representative in Congress from the State of California
Mr. Scott. Thank you.
Ms. Wasserman Schultz?
TESTIMONY OF THE HONORABLE DEBBIE WASSERMAN SCHULTZ, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA
Ms. Wasserman Schultz. Thank you, Chairman Scott and
Ranking Member Gohmert and distinguished Members of the
Committee, for allowing me to testify today beside my friend
and fellow Committee colleague, Representative Linda Sanchez.
And I want to acknowledge my colleague, Representative John
Culberson, who has taken ill and was not able to join us today.
It is always an honor to appear before this Subcommittee,
and I am pleased that we continue to make protecting children
online a high priority.
You know, Mr. Chairman, as proud as I am to represent south
Florida in the House of Representatives, the job closest to my
heart is being a mother to my 10-year-old twins and my 6-year-
old daughter. And, as one of only a handful of mothers with
young children in Congress--and Representative Sanchez has
recently joined our ranks, and we welcome her and congratulate
her on that--I can assure you that we have no higher priority
than keeping our children safe from harm.
Now, for me, I approach today's topic as a Web-savvy mom
with Web-savvy kids. In fact, as of yesterday, literally, my 6-
year-old daughter now has an e-mail address which she uses on
her iPod Touch--with strong parental control software fully
engaged, I might add. Clearly, parents and teachers already
know that our children are growing up in a completely different
world than we did, as Representative Sanchez acknowledged.
The Internet is a wonderful tool, but it has also become a
pathway for risky behavior. The same Internet that helps our
children create, study, and explore the world also enables
minors to post nude photos online or text them to friends. The
same Internet that allows children to organize clubs and
volunteer for after-school activities also provides a way for
children to harass their fellow students relentlessly,
anonymously, publicly, and after the school day has long ended.
As legislators, we have to get real. We must accept that
our kids spend more time online than in front of the
television. We have to own up to the fact that 89 percent of
teenagers have profiles on social networking sites like MySpace
and Facebook. We must understand that nearly four in 10 kids
have used the Internet to make fun of or post lies about their
fellow students. We must understand that we live in an era when
four out of five teenagers have cell phones, most of which have
cameras. And we must know that more than one in five teenagers
admit to sexting nude photos of themselves to peers.
These behaviors, often done on impulse or in boredom, have
devastating real-life consequences. This May, I had the honor
of meeting Cynthia Logan, a young mother from Ohio. She told me
her story, and it truly broke my heart.
Her daughter, Jesse, was only 18 years old when she sent
nude photos of herself to her boyfriend. After the young couple
broke up, the ex-boyfriend sent them to other high school girls
all over the school. They called Jesse names I can't repeat in
this hearing. They passed around her pictures as casually as
they would notes in a classroom. And they made Jesse's life a
living hell. What began as a private communication turned into
a public humiliation. Jesse became miserable and depressed. She
eventually took her own life.
Sadly, her case is not unique. Megan Meier, the young teen
from Missouri that is the namesake of Congresswoman Sanchez's
legislation, also committed suicide after being bullied online.
It is not surprising that researchers at the Yale School of
Medicine have found significant links between bullying and
There are other dire consequences to these behaviors. An
18-year-old boy in my own home State of Florida was convicted
on child pornography charges for sexted photos. He must now
register as a sex offender for the rest of his life.
So what do we do about it? There is no one answer or one
silver bullet, but we can either continue to shut our eyes to
the reality or we can tackle this problem head-on.
I believe that we must usher in a new era of Internet
safety education and cybercrime awareness. We must teach
children how to be good cyber citizens. Unfortunately, most
parents and most teachers don't feel comfortable teaching kids
how to be safe online. This means most children receive no
training whatsoever in the safe, smart, and responsible use of
the Internet. I, myself, have held three Internet safety town
halls in my district. But as individuals and parents, we can't
do this alone. We need a consistent and national approach.
Last week, with Congressman Culberson, I was proud to
introduce H.R. 3630, the ``Adolescent Web Awareness Requires
Education Act,'' or the ``AWARE Act.'' Our bill will establish
a competitive grant program so that nonprofit Internet safety
organizations can work together with schools and communities to
educate students, teachers, and parents about these online
Our bill authorizes up to $125 million over 5 years to
establish age-appropriate, research-based programs that will
encourage the safe, smart, and responsible use of the Internet
and teach cybercrime awareness and digital literacy in the new
media to our children.
Education is important because it helps teach both parents
and children how to act in all kinds of real-life situations.
Education is vital because it can reinforce new norms between
students. Education gives children lessons, teaches skills, and
builds strength that can last a lifetime.
We can teach children to treat their fellow students the
same way online that they would in person. We can teach them
not to bully or harass their peers and how to report dangerous
our threatening activity when they see it. We can teach them
not to post inappropriate material about themselves or others.
We can teach them about privacy settings and about the risks of
talking to strangers or posting personal information online. We
can teach them that what they put online stays online. And we
can teach them that the minute they hit that send button, they
not only lose control over where their photos go next, they can
also lose control of their future.
We can and we must teach children how to be safe on the
Web. Jesse Logan's death was a tragedy, but it also is a
powerful reminder about the lives that we can save. Knowledge
truly is power, and with the ``AWARE Act,'' it is my hope that
we make knowledge our children's first line of defense.
[The prepared statement of Ms. Wasserman Schultz follows:]
Prepared Statement of the Honorable Debbie Wasserman Schultz,
a Representative in Congress from the State of Florida
Mr. Scott. Thank you very much.
Do you have questions for the witnesses?
Mr. Gohmert. No.
Mr. Scott. We want to thank you for your testimony, and we
are going to go on with the other witnesses. Thank you very
If the other witnesses will come forward.
Our second panel of witnesses consists of five
Our first panelist will be professor Robert O'Neil. In
1990, he founded the Thomas Jefferson Center for the Protection
of Free Expression and was director until 2007. Though
officially a professor emeritus from the University of
Virginia, he continues to teach a first amendment clinic. He is
the author of several books, including ``Free Speech in the
College Community,'' ``The First Amendment and Civil
Liability,'' and ``Academic Freedom in the Wired World.''
Our next panelist is Judi Westberg Warren. Since 2004, she
has served as president of Web Wise Kids, a national nonprofit
organization that implements educational programs to help our
youth stay online safely. She serves on numerous committees,
including the Congressional Internet Caucus Advisory Committee
and the Internet Safety Advisory Board for the Attorney General
Our next witness is Harvey Silverglate. He is the counsel
to the Boston law firm of Zalkind, Rodriguez, Lunt & Duncan,
LLP, specializing in criminal defense, civil liberties and
academic freedom, and student rights law. He currently serves
as an adjunct professor with the Cato Institute and is speaking
on its behalf today.
Our next panelist is Nancy Willard. She is the director of
the Center for Safe and Responsible Internet Use and has
degrees in special education and the law. She is author of two
books, ``Cyberbullying and Cyberthreats: Responding to the
Challenge of Online Social Cruelty, Threats, and Distress;''
and ``Cyber-Safe Kids, Cyber-Savvy Teens: Helping Young People
Use the Internet Safety and Responsibly.''
And our final panelist is John Palfrey, professor of law
and vice dean for library and information resources at Harvard
Law School. He is the co-author of ``Born Digital:
Understanding the First Generation of Digital Natives'' and
also ``Access Denied: The Practice and Politics of Internet
Filtering.'' He recently chaired the Internet Safety Technical
Task Force directed by the Berkman Center for Internet and
Society at Harvard University.
Each of the witnesses' written statements will be entered
into the record in its entirety. And I would ask each of our
witnesses to summarize your testimony in 5 minutes or less.
And to help you, there is a timing device on the table. It
will start off green, will go to yellow when there is 1 minute
remaining, and will turn red when your 5 minutes have expired.
Professor O'Neil, it is good to see you again.
TESTIMONY OF ROBERT M. O'NEIL, LAW PROFESSOR EMERITUS,
UNIVERSITY OF VIRGINIA, CHARLOTTESVILLE, VA
Mr. O'Neil. Thank you, Mr. Chairman and Representative
Gohmert. I am delighted and honored to have an opportunity to
come to discuss with you a vital but also an exceedingly
difficult issue of national policy. This is my 47th year of
teaching constitutional law, free speech, and press, and this
is one of the toughest issues I think I have ever encountered.
Of those 47 years, I spent much of the last 25 teaching at
the University of Virginia and, most recently, this past
spring, at the University of Texas. So, from those experiences,
nearly a half-century, I had hoped to share four or five fairly
basic points, which are more fully developed in the written
statement that I had filed.
First, it seems to me this issue has recently acquired a
new kind of urgency, in part because of the graphic, sometimes
cruel, brutal, and devastating experiences that the two earlier
witnesses described so graphically and vividly. For me, as the
grandfather of an Internet-savvy young lady who just turned 13,
it is hard to avoid the potentially personal impact of such
It also acquires an urgency because, within the past month,
the Federal district judge in southern California, by
dismissing the charges against Lori Drew under the ``Computer
Fraud and Abuse Act,'' essentially left Federal prosecutors
with no viable recourse against even the most cruel form, the
most extreme form of cyberbullying.
Obviously, as Representative Gohmert pointed out earlier,
any solution this Subcommittee or the full Committee or the
Congress may craft must be compatible with the first amendment
to the Constitution, must recognize the protections of free
speech and press.
Obviously, that requires finding some exception to those
protections, the more urgent in this country because uniquely
we, in the United States, and our courts presume that speech is
protected until and unless it is shown to fall within one of
several rather narrowly defined exceptions. Several exceptions
have been suggested in this context--incitement, defamation,
deception, true threats, invasion of privacy, fighting words--
but for one reason or another, none of those exceptions really
seems to be viable in this context.
The one that potentially works is the one on which H.R.
1966 is premised, and that is intentional infliction of
emotional distress. It is not a perfect fit, but that is a
well-recognized tort remedy which has never been thought to
violate or abridge free speech or free press.
It hasn't traditionally been applied in the criminal
context, and that is one of the variations that requires
consideration in this instance. But, for a whole lot of
reasons, it seems to me that intentional infliction of
emotional distress is by far the most promising of the various
and potentially available exceptions to first amendment
It seems to me that H.R. 1966 is certainly on the right
track. It is a very promising approach to this problem. I
would, however, respectfully suggest consideration of three
ways in which 1966 might be strengthened: The first would be to
look at all possible types of intent which ought to be
potentially punishable. The second would be to require proof
that a particular person or victim has been targeted or singled
out for special attention as a critical element of
The third is to require some evidence of impact or effect.
In most cases, this would not be anything nearly as drastic as
Megan Meier's suicide. But I would suspect that, in a viable
Federal prosecution, there would be evidence at least of time
lost from school, of physical or other illness, consequences to
the family, and so on.
So I would respectfully urge consideration by the
Subcommittee of possibly strengthening H.R. 1966 in those three
Thank you. I would be happy to answer questions, but I very
much appreciate this opportunity.
[The prepared statement of Mr. O'Neil follows:]
Prepared Statement of Robert M. O'Neil
Mr. Scott. Thank you.
TESTIMONY OF JUDI WESTBERG WARREN, PRESIDENT,
WEB WISE KIDS, SANTA ANA, CA
Ms. Warren. Thank you, Mr. Chairman and Members of the
Committee, for inviting me to speak on this very important
issue of children's safety.
I represent Web Wise Kids, which is a national nonprofit
organization which has reached over 7 million kids within the
United States with our programs. We are very thankful that
Congress is addressing the issue of the growing need for
Internet safety among our youth.
Increasing online safety for children requires a
comprehensive solution involving diverse stakeholders,
including youth, parents, law enforcement, educators, mental
health professionals, industry, and community-based
organizations. Web Wise Kids believes strongly that Internet
safety education is the most effective way to resolve problems
and dangers relating to misuse of the Internet.
In the United States, more than 35 million children in
kindergarten through grade 12 have Internet access, and, each
year, children are starting to use the Internet at a younger
and younger age.
The Internet is a powerful and growing medium, with more
than 1 billion Internet users worldwide. The Internet is an
invaluable tool, critical to America's ability to compete in a
global economy. At the same time, it also poses great
challenges to keeping kids safe in a new cyber world.
This dramatic rise in children's use of Internet has led to
an increase in risky behaviors, such as cyberstalking and
cyberbullying and sexting. Research indicates that youth are at
risk online. For example, 43 percent of teens were victims of
cyberbullying in 2008, and 33 percent of teenagers have been
approached online by a stranger.
Web Wise Kids strongly supports legislation to provide
funding for Internet safety programs. New investments in our
educational infrastructure will train and equip teachers and
law enforcement with the tools they need to teach children to
use the Internet and other technologies safely.
Children are integrating technology into their lives at
lightning speed. While this is a positive development, State
and Federal funding is inadequate to meet that growing need.
Students receive little education on safe and ethical Internet
use. The majority of responsibility for teaching Internet
safety falls on educators, who are often unprepared to provide
this type of education.
Federal law mandates that elementary and secondary schools
receiving E-rate funding must have an Internet safety education
program. However, no funding has been provided to meet this
Clearly, parents play a significant role. Providing
targeted resources to the school system would also effectively
help us to reach parents.
Web Wise Kids strongly supports passage of the ``AWARE
Act'' sponsored by Congresswoman Wasserman Schultz and
Congressman Culberson, as well as its Senate counterpart
sponsored by Senator Menendez. This legislation is carefully
crafted and will provide much-needed funding to support
collaborative, comprehensive, and diversified approaches to
online safety education in our schools.
The bill's centerpiece is a competitive Internet safety
education grant program for State and local education agencies
and nonprofit organizations to promote the safe use of digital
technologies. The ``AWARE Act'' identifies clear uses of the
funding and includes safeguards to assure an effective research
and evaluation component of the program. This legislation will
go a long way to protect children and families online.
While administered by the Department of Justice, Web Wise
Kids strongly urges the concurrence of the Departments of
Education and Health and Human Services in implementing this
legislation. Interagency cooperation will allow for sharing
insights and information.
We applaud Congresswoman Sanchez for raising awareness of
cyberbullying as a significant problem for children in the U.S.
Cyberbullying, like offline bullying, can cause substantial
harm to our youth, including serious and long-term emotional
and behavioral problems. For the victim of cyberbullying, there
can be literally no place to run. Prevention of cyberbullying
through educating kids on how to respond to online harassment
is paramount, in our view.
Imposing punitive sanctions requires careful examination.
Targeted criminal penalties against severe forms of harassment
might be appropriate if the legislation is able to withstand
constitutional scrutiny. The most effective impact Congress can
have is providing greater resources to promote Internet safety
education in our schools and prevent harm from happening in the
Passage of this legislation, sponsored by Congresswoman
Wasserman Schultz and Congressman Culberson, would be a first
major step forward. Education builds lessons for a lifetime.
With this legislation, we have an opportunity to enhance the
skills of educators and provide students with hands-on
opportunities to use technology safely and ethically for
generations to come.
[The prepared statement of Ms. Warren follows:]
Prepared Statement of Judi Westberg Warren
Mr. Scott. Thank you.
TESTIMONY OF HARVEY A. SILVERGLATE, ATTORNEY, ZILKIND,
RODRIGUEZ, LUNT & DUNCAN, LLP, CAMBRIDGE, MA
Mr. Silverglate. Thank you for the opportunity to testify
My main occupation is that of a criminal defense and civil
liberties trial lawyer, as well as an author. So I have done
it, and I have written about it. And I have a certain
perspective that I have gained from the enforcement of statutes
like this out in the real world.
In 1998, I published the book, ``The Shadow University: The
Betrayal of Liberty on American Campuses.'' The book was
largely about the enforcement of speech and harassment codes in
American campuses of higher education.
In 2009, earlier this year, I published another book,
called ``Three Felonies a Day: How the Feds Target the
Innocent.'' I am leaving a copy of each book here when I leave.
You can use it as you wish, or not.
But the impetus to publish these two books grew out of my
observations in some of the cases that I tried. There are two
problems that I noticed, both of which are present in this
bill, the ``Cyberbullying Prevention Act.''
First of all, there is a problem with the vagueness in the
definition of the criminal conduct. And vagueness,
incidentally, is distinct from overcriminalization. I have
problems with overcriminalizing too many things, but at least
if the statute is clear, you know where the lines are drawn.
This statute has a significant vagueness problem, and that
vagueness problem is exacerbated by the fact that it impinges
on protected speech.
I beg to differ with Professor O'Neil, but if one looks at
the Supreme Court's decision in Hustler Magazine v. Falwell,
that was a case where the court, 8 to 0, unanimously overturned
a verdict for Reverend Falwell against Hustler Magazine for the
intentional infliction of emotional distress. The
constitutional issue here is hardly clear. You don't usually
get eight-to-nothing opinions of the Supreme Court, where there
is no constitutional problem.
But my experience with harassment codes on college campuses
tells me that this statute is going to cause a lot of problems,
not only legal, but also it is going to prevent a lot of speech
which is and should be constitutionally protected.
I actually, after publishing ``The Shadow University,'' I
had to start a nonprofit foundation called the Foundation for
Individual Rights in Education in order to help the hundreds
and hundreds--in fact, it is more than hundreds, it is
thousands--of students who were, themselves, harassed by their
colleges because they deigned to say things which were deemed
by somebody else to be harassing or exceedingly unpleasant.
Now, in ``Three Felonies a Day,'' I have catalogued scores
of cases in the criminal justice arena where this same problem
arises, people who are convicted for doing things that a lot of
us would look at and say, well, wait a minute, how could that
be a crime? And the cyberbullying bill uses the same kinds of
terms that have caused such problems on campuses:
``intimidate,'' ``harass,'' ``cause substantial emotional
distress.'' These are terms that ordinary people, intelligent
people, would differ as to what falls within one or another
Essentially, this bill would criminalize communications
that are very unpleasant, very annoying to the recipients. It
will doubtless result in the charging of a substantial number
of people whose activities are protected or should be by the
first amendment. And, by its mere existence on the statute
books, it will deter a vast number of people from exercising
speech in a vast number of circumstances where we would all
agree it should be protected.
I am not making a case here for harassment. I don't
consider it our friend. True harassment is already covered more
than adequately by State and even by Federal law via statutes
outlawing and punishing true threats and other extreme conduct.
All this bill would do, in my view, is criminalize existing
tort law and federalize a perfectly adequate array of State
statutes that criminalize true threats that are well understood
within the common law tradition. So this bill would really, I
fear, confuse citizens while deterring a vast array of
constitutionally protected speech.
[The prepared statement of Mr. Silverglate follows:]
Prepared Statement of Harvey A. Silverglate
Mr. Scott. Thank you.
TESTIMONY OF NANCY WILLARD, M.S., J.D., DIRECTOR, CENTER FOR
SAFE AND RESPONSIBLE INTERNET USE, EUGENE, OR
Ms. Willard. Thank you very much.
I have prepared and provided you a joint statement of
opposition to the Megan Meier cyberbullying bill signed by
every author of a book on cyberbullying in the United States,
as well as many other risk-prevention professionals. This bill
will not effectively address cyberbullying, for many of the
reasons which you already outlined.Information
included as attachment with prepared statement deg.
[The information referred to follows:]
Ms. Willard. We also acknowledge the good intentions of Ms.
Wasserman Schultz in addressing this through education, but we
have significant concerns about this bill as currently drafted.
So I would like to go into those.
First of all, we have to understand that there is a lot of
mistaken understanding in this area. In fact, the Lori Drew-
Megan Meier case was inaccurately reported. Lori did not create
that profile, she did not engage in or direct the
communications, and she wasn't even home when the harmful
communications were sent. My information comes from the
prosecutor in the community who presented at a MAG conference
that I presented at.
One in five teens have not been sexually solicited by adult
sexual predators. That was primarily teen-on-teen sexual
harassment, which they handled effectively. The incidence of
online predation in 2006, from Crimes Against Children Research
Center, was around 600 incidents, about 1 percent of all
arrests for sexual abuse of minors.
We have a significant amount of techno panic going on here.
And until we get to an accurate understanding of the actual
risks, we are not going to proceed effectively. So the actual
risks include electronic aggression. I was going to say more,
but, Mr. Scott and Mr. Gohmert, you have a great understanding
of these issues.
Risky sexual personal relationship issues. There is sexual
solicitation going on. It is primarily among teens. We have
unsafe cyber-dating. Abusive partners are using this technology
for control. And we have the sexting issue.
We also have issues that haven't even percolated up in our
understanding. Unsafe communities, where kids are encouraging
self-harm, anorexia, self-cutting; and also dangerous groups,
online gangs and hate groups. And, Mr. Scott, we could do some
amendments to your really excellent ``PROMISE Act'' to address
some of these issues.
The research has indicated that the young people who are at
greater risk in the offline world are at greater risk online.
These issues involved incidents between known peers. The
majority of young people are actually making good choices
online. And teens whose parents are actively and positively
engaged are engaging in less-risk behavior.
We have to stop the negativity that we have, the fear, the
kind of ``reefer madness,'' ``just say no'' approach to these
issues. To address these, we have a three-part program that we
need to be doing.
We need to make sure that we have Web 2.0 technologies in
schools, because we can't teach kids how to swim unless we get
the swimming pools in school, okay? One of the major barriers
to doing that is the fear that is generated about youth risk
online that is grounded in an inaccurate understanding of these
In risk prevention, we look at things from a universal
approach and a targeted approach. We need universal digital
safety and media literacy in schools. Some of the challenges
include: A lot of the curriculum that out there is this
``reefer madness,'' ``just say no'' approach. And there is a
lack of accurate understanding among teachers.
But this new requirement to the ``Children's Internet
Protection Act'' is causing a shift. Schools are mobilizing to
address these issues, and there is new curriculum coming out
that is really excellent and actually very low-cost to address
these issues. We could reinforce this in the reauthorization of
the ``Elementary and Secondary Education Act,'' but, Mr.
Gohmert, I do not believe there is a significant need for the
funding of the creation of curriculum in this area.
The next issue is targeted youth risk prevention and
intervention. We have to address these more significant risks.
One of the biggest challenges is that you eliminated the block
grants for State and local Safe Schools funding at exactly the
time that we need to mobilize these people to address these new
risks. We need to ensure that our schools are addressing youth
risk online in the context of their Safe School planning.
We could have a discretionary grant program to target funds
to risk prevention and intervention programs, much like what
you have tried to do. But we absolutely have to have a triad of
leadership in this area, not the Department of Justice in
consultation with the Department of Mental Health and the
Department of Education; a joint program similar to the Safe
Schools and Healthy Students Program, where all three agencies
are working in joint collaboration.
And we also need to recognize that there will never be
evidence-based best practices in this area. It takes about a
decade to get an evidence-based best practice. The research is
just emerging. These technologies are changing rapidly.
There are provisions within the Safe School program to get
a waiver from the principles of effectiveness if you establish
an appropriate needs assessment, a plan that has a reasonable
likelihood of success, and effective evaluation. So we need to
tie this program to those existing requirements to ensure
Thank you very much. And I have offered my assistance to
your staff to seek to improve this legislation. Thank you.
[The prepared statement of Ms. Willard follows:]
Prepared Statement of Nancy Willard
Mr. Scott. Thank you.
TESTIMONY OF JOHN PALFREY, LAW PROFESSOR,
HARVARD LAW SCHOOL, CAMBRIDGE, MA
Mr. Palfrey. Mr. Chairman, thank you so very much for the
honor of the invitation to be here. Ranking Member Gohmert and
Members of the Subcommittee, thank you for focusing attention
on this important issue. I want to speak first to the research
that has been done in this area and then speak to a few of the
solutions discussed today.
I think that, Mr. Chairman, you described the state of the
research extremely well. I have spent the last few years in the
field doing research myself, talking to kids, parents,
teachers, social workers, and others, but also, as the Chair of
the Internet Safety Technical Task Force, which was
commissioned by the Attorneys General, reviewed much of the
research done by others in this field.
I think that the state of affairs is that bullying online
is on the rise. No matter how you define it, no serious
observer disputes that fact. I think that one of the key
aspects of this is that what we are seeing is that public
spaces have moved from playgrounds to online spaces, online
spaces often owned by private companies and online spaces that
are often highly distributed.
So, as we think about this, I think we need to think about,
how do we want to govern behavior in these online spaces, and
noting that kids don't distinguish between their online lives
and offline lives; it is mostly just life. So it urged us, in
thinking about this, to focus less on the cyber part of
cyberbullying and think of it as bullying, which is, I think,
how most kids do.
I think part of the problem, too, is this gulf that many
have acknowledged between parents and teachers, social workers,
and others who don't feel that they have the tools to help, and
the kids themselves who are engaging in risky behaviors in
these online spaces, just as they do in the offline. And I
think that any solution that we look at needs to address this
problem of the gulf to put the right tools in the hands of
parents, teachers, social workers, pediatricians, and others
who are touching our kids' lives.
Turning to potential solutions, I think the Committee has
done a great job at identifying potentials in this area. I
think no one disputes the notion that this will require a
series of different solutions, a series of different solutions
with education at the core. I think it also goes without saying
that parents have the greatest obligation here, and kids
themselves. This is something that is most sensibly dealt with
in the home.
But I think we should also look to opportunities like using
technologies as part of the solution and working with companies
who are, in a way, the overseers of these playgrounds in many
respects, and, of course, looking to the law.
I would share the view that criminalization is not the
answer, with due respect to Ms. Sanchez. I won't go into that
since others have touched on the constitutionality, but also
the effectiveness of that. I think it is crucial that law
enforcement play a role in this space, but it needs to be, I
think, a backstop.
I think the education support described in the ``AWARE
Act'' is precisely the right place to start from here. I think
that, in reading the ``AWARE Act,'' one thing it does very well
is to track the research in the field. It talks about public
and private-type partnerships. It looks at at-risk kids, where
we know many of the problems are.
And I think it has been drafted in such a way as to support
those kinds of activities that need supporting. And, as someone
working in this field, I am keenly aware of the fact that there
is not sufficient support for exactly this kind of work and
that it is the most promising, even though even that will not
get the entire job done.
I would point to one other potential approach that, Mr.
Chairman, you mentioned, about revisiting section 230 of the
``Communications Decency Act.'' I say this with some
trepidation. There are many I respect who think this is a
terrible idea, what I am about to say, and these are smart
There is a statute on the books that exempts from liability
online intermediaries, and that has been a very important part,
I think, over the last decade or so of Federal legislation in
this area. It has allowed for a great deal of innovation and so
But I do think that there are instances where this immunity
is broad enough that bad actors are able to hide behind it in a
way that disincentivizes the ``good samaritan'' behavior that
you in the Congress thought about when you were passing this
Again, I would urge great caution in tinkering with this
statute. Again, the costs, the demerits of this are with
respect to innovation, and they might be very great in some
cases. But I think we need to make sure that the law overall is
incentivizing the kind of behaviors that we see in many good
companies, Facebook and other social networks, that really
exemplify good behavior here, while disallowing the bad actors
from hiding behind a shield that we didn't mean to give them.
So I would urge a look in that direction.
But, again, no one approach is going to solve the problem.
I think that the community-based approaches that have been
discussed today are precisely the right angle. And, again, I
commend the Committee for focusing attention on this important
[The prepared statement of Mr. Palfrey follows:]
Prepared Statement of John Palfrey
Mr. Scott. Thank you, Professor Palfrey.
We will now recognize ourselves under the 5-minute rule to
I will begin with Professor O'Neil. You used an interesting
term involving the Constitution, ``promising.'' That didn't
quite get us there. I assume there would be no problems if the
communications involved threats.
Mr. O'Neil. That certainly is a recognized exception. The
Supreme Court has never really defined ``true threat.'' They
have used that phrase and implied that true threats are not
constitutionally protected, like fraud and inducement and
accessory before the fact and a whole other range of uses of
language that are not protected speech.
My assumption is that, and I think that both of you pointed
to this possibility, some elements in a cyberbullying
communication or a series of cyberbullying messages undoubtedly
would be threats, but I would think the greater part of the
kind of cyberbullying message that creates the greatest
concern, indeed anguish, among those who seek to redress are
not really threats. They aren't incitement, they aren't
fighting words, they aren't libel. They don't fit into any of
Mr. Scott. You suggested that intentional affliction of
emotional distress is normally a civil action, not criminal.
Mr. O'Neil. It is.
Mr. Scott. Can you convert it into a crime?
Mr. O'Neil. It has not been done, to my knowledge.
Mr. Scott. Is it protected from criminal, but not protected
Mr. O'Neil. It is so clearly--the classic case being one
person as a cruel joke or a hoax sends an e-mail message to
somebody else saying, so sorry to hear of your brother's death
last week, when, in fact, the brother is alive and well. It has
been widely assumed--I have never seen a first amendment
jurisprudence or scholarship to the contrary--that in a classic
situation of that kind, a civil recovery would be feasible. The
Falwell-Hustler case to which Mr. Silverglate referred is in
some ways troublesome, but the Supreme Court's concern was that
Reverend Falwell was a very prominent public figure, and as a
public figure plaintiff, by analogy to the New York Times
privilege, he was denied recovery.
Mr. Scott. We don't have that public figure exception in
criminal law, do we?
Mr. O'Neil. Probably not, although the context of which we
are talking, cyberbullying, almost inevitably involves people
who are not public figures. And until it becomes a media issue,
for example, or leads to litigation, they are neither public
figures, nor are they engaged in a matter of public concerns.
So I am assuming we passed that barrier.
But as I noted in my prepared testimony, the absence really
of any either supportive or preclusive reasoning with respect
to a criminal application of intentional infliction of
emotional distress is an issue. I just am not aware of any
jurisprudence or scholarship that argues strongly either way.
So I guess I would say it is worth a try.
Mr. Scott. Well, we have dealt with this with telephones.
You are familiar with, in Virginia, 18.2429, causing telephone
to ring with intent to annoy----
Mr. O'Neil. Yes.
Mr. Scott [continuing]. Where any person with or without
the intent to communicate, but with intent to annoy, causes a
telephone to ring is guilty of a misdemeanor crime.
Mr. O'Neil. I think the intent to annoy may be troublesome
for different reasons, and that is one of the reasons I
suggested in 1966 that further attention to sharpening the
intent elements would be a starting point, as well as
Mr. Scott. Well, we differentiate with telephone and mail.
You can prohibit making somebody's telephone--you can prohibit
ringing telephone communications that you probably couldn't
prohibit mailing something because of the intrusion. Do we have
the same problem with the Internet?
Mr. O'Neil. We don't really know. When the Supreme Court,
now 12 years ago, granted full first amendment protection to
Internet speech, something they had not in decades done with
respect to any other new medium, they left a lot of issues
unanswered. And there are some downside implications,
cyberbullying perhaps the most dramatic of which, we are only
becoming aware, and on which the Supreme Court really has had
no occasion to rule. So, again, I would say there have got to
be some dark shadows in this generally promising penumbra
called the Internet, and cyberbullying may be the darkest of
Mr. Scott. I have other questions, but I will defer at this
time to the gentleman from Texas Mr. Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman.
And thank you for all of your testimony. Very thoughtful.
And it does raise interesting issues.
Professor O'Neil, when you talk about intentional
infliction of emotional distress, there are some States like
Texas and in the legal literature of most places is an ongoing
debate over whether or not that is sufficient to create a cause
of action in tort law without some type of physical
manifestation of the harm. So this would be taking that a
couple of lightyears further down the road. We are going to
jump past the physical manifestation of harm and go straight to
making it a crime, which you say, as I understand you, it may
fit here, but this is a troublesome horse to ride in for this.
Mr. O'Neil. It certainly does raise questions. But your
reference to the requirement of some discernible harm doesn't
have to be suicide, doesn't have to be injury or heart attack.
But it seems to me a conscientious prosecutor would never
charge somebody under a cyberbullying statute without some
fairly graphic evidence of impact or effect. I don't think that
undermines the case; I just don't think it will be worth--would
make sense to bring such a case unless there were evidence of
effect or impact.
Mr. Gohmert. Or unless somebody wanted to harass the
harasser. And there have been prosecutors that went out of
their way to seek indictments just to harass, as you, I am
sure, know the old saying, a good prosecutor could indict a ham
But without the public figure exception, then it does get
interesting for us, because all Members of Congress are accused
of all kinds of things. I get an e-mail my dad forwards
regularly saying: If you guys would just get on Social
Security, then it would solve the Social Security problem. They
don't know we have been on Social Security for a number of
years. And Ron Paul told me back in July that some liberal blog
just put up that there was only one Member of Congress crazier
than Ron Paul, and it was Louie Gohmert. So I don't know if
that was meant to compliment or harass, but----
Mr. O'Neil. Truth is a defense.
Mr. Gohmert. Yeah, there is that.
And then you have got the situation where most everything
that is on television or on video ends up on the Internet. And
Sarah Palin would have all kinds of cause of actions, but do
you really want to arrest David Letterman for a bad joke?
It creates troublesome issues here of what is not intended
to harm, but intended to be humorous. And then practical jokes,
those abound on the Internet. So it is a troublesome legal
Now, I am intrigued, Ms. Willard, by your comments about
maybe be more assistance through the block grants for the Safe
Schools. Do you want to comment on that?
Ms. Willard. Yes. President Obama's budget--I am not sure
everything that is going on there, but President Obama's budget
zeroed out the funding for the States and local block grants
for Safe Schools. They are redoing that program. My concern is
that we have we have to move forward to address these issues of
threats on line. The impact of these harmful actions is coming
to school, and the programs that--the personnel, the expertise
that is in place at the State and local level to address these
issues are the Safe School folks.
Mr. Gohmert. What about the adults that have similar
Ms. Willard. Well, my focus is on teens. And maybe if we
can get it during teens.
Mr. Gohmert. They can teach their parents.
Ms. Willard. Yeah. But so within schools, we really need to
have these Safe School programs, at least the State and local
infrastructure funded, in order to be able to move forward to
address these youth risk on-line issues. And then in the
reauthorization of the Elementary and Secondary Education Act,
we need to make sure that the Safe School plans are also
addressing youth risk on line.
Mr. Gohmert. Well, I see my time is about expired, but I
really appreciate what you all bring to the debate, and it does
pose some really interesting issues. But obviously there is a
problem, as there always has been. And as one who was regularly
beat up because I was small, but I wouldn't take stuff from the
bigger guys, I am sensitive to bullying of any kind, and I
don't want to overreact.
Ms. Willard. I went through junior high as Weirdo Willard,
so we share that.
Mr. Gohmert. Well, actually junior high is when I came out
of my shell and started being a comedian back in those days.
Not so funny anymore though.
But thank you, Mr. Chairman. I yield back.
Mr. Scott. Thank you.
The gentleman from California.
Mr. Lungren. Thank you, Mr. Chairman.
Mr. Scott. Thank you.
The gentlelady from Florida has just stepped back in. Thank
you for deferring. The gentlelady from Florida.
Ms. Wasserman Schultz. Thank you, Mr. Chairman. I had to
take a call from our caucus Chairman. I apologize for stepping
out a minute.
Ms. Westberg Warren, I, first of all, want to congratulate
Web Wise Kids on all of the good work that your organization
does, and I appreciate your assistance with the Internet safety
education town halls that we have done in my congressional
district. I can tell you that the way that your presenters
interact with kids of all ages in age-appropriate ways, and the
way the breakouts work separating parents and children is
really a breakthrough for them, and it does lead to safer
What I wanted to ask you is my good friend from Texas who
needs truth as a defense made a reference to not thinking that
we need a competitive grant program for Internet safety
education, and this is just something that can be left up to
parents and schoolteachers, and your colleague who is
testifying with you today seems to imply that there is enough
curricula out there, and that it isn't necessary to create
anything else, and that everything is just fine.
So can you address those two comments, which I don't agree
with, and I would imagine you don't either.
Ms. Warren. Thank you for asking the question.
Yes, I absolutely do not agree with that. First of all,
children really are our priority. They are our most valuable
resource in this country, and we not only want to safeguard
them on the Internet, but we want them to enjoy the Internet
and thrive on it; and that, being able to thrive on it, is
threatened if they are having serious consequences to their
interaction on line.
The second thing is that there virtually is no funding out
there. As an organization that has reached 7 million kids over
the last several years, we are constantly looking for funding.
Our programs cost a lot of money to produce because we are
looking for effective ways to reach kids. One of the ways that
we used to reach kids are using their own medium, computer
games, and they are very costly to produce. So we are
definitely as a nonprofit----
Ms. Wasserman Schultz. But if you can address, why can't
parents do it on their own? Why is it something that we need to
be teaching in the schools? Why do we need to be creating
Internet safety education programs to give tools to teachers
and to parents to help them understand how they can reach their
Ms. Warren. Because there is no current way that teachers
are educated on how to implement Internet safety.
Ms. Wasserman Schultz. So there is no comprehensive way?
Ms. Warren. There is no comprehensive way.
Ms. Wasserman Schultz. There is no continuing education
programs. There is no consistent, comprehensive national
approach to the curricula?
Ms. Warren. No. But is a mandate. The E-Rate mandates that
they have safety programs, and yet there is no funding for it.
So parents are also critically important to this, but are
oftentimes catching up to their children in their knowledge of
technology. So empowering parents to be able to talk to their
kids about Internet safety is critical, too.
Ms. Wasserman Schultz. Thank you.
Ms. Willard, I have to tell you, I find it offensive that
you would suggest that you would split hairs over whether Lori
Drew was or was not home, was or was not involved in--I mean,
she was convicted of a crime. It was later overturned, but she
was--there was enough evidence for a jury and a judge to
determine that she was culpable and significantly involved in
events that led to the suicide of a young girl. And as mother
of young girls, I find it offensive that you would suggest that
that should just be cast aside and that it was unimportant.
It is also offensive to me for you to suggest that there is
only 600 cyberbullying or--you made a reference to there being
600 instances of a particular type of bullying.
Ms. Willard. That was arrests for on-line sexual predation.
Ms. Wasserman Schultz. All the worse then, because if it is
your child that is the victim of that predation, it doesn't
matter if it is 600, 6, or 1. If it is your child, it matters a
whole lot. So I wouldn't--I really think it is offensive that
you would trivialize the amount of--assuming that your numbers
are even correct.
But let me get to your comments on my legislation. In your
submitted testimony, you labeled it entirely unacceptable, and
that is pretty strong language. Let me just be clear. I don't
want to have an ineffective safety net program, and under my
bill these are concepts that would be taught by Internet safety
nonprofits, not police officers. You do understand that, right?
You understand that this is information that would be imparted
by Internet safety organizations. Okay. And one of the reasons
that you are opposed to it is because you have--you oppose the
funding from the Department of Justice.
Ms. Willard. No.
Ms. Wasserman Schultz. Correct?
Ms. Willard. No. This needs to be funded and controlled
jointly by the Department of Mental Health, by the Department
Ms. Wasserman Schultz. But you don't want the grant program
to be through the Department of Justice, correct?
Ms. Willard. It needs to be funded through all three.
Ms. Wasserman Schultz. And, again, you think that these are
concepts that would be taught by police officers? You do
Ms. Willard. No. I understand that the intention of the
bill--the concern I have is----
Ms. Wasserman Schultz. No. I heard your concern in your
testimony. But this is not a view that you have always held,
Ms. Willard. I have always had concerns with the funding
through the Department of Justice.
Ms. Wasserman Schultz. Well, in fact, you supported.
Ms. Willard. And with the focus on----
Ms. Wasserman Schultz. Well, in fact, you supported--on
March 21, 2008, you sent out an action alert to your supporters
when Senator Coburn put a hold on the very same bill that
Senator Menendez is sponsoring this year, correct?
Ms. Willard. Yes.
Ms. Wasserman Schultz. And in that e-mail, you begged for
pressure from the field to be placed on Senator Coburn to
release this hold. This is money that can come through the
State and local education organizations as well as Internet
safety organizations to support education. Those are your
Ms. Willard. Uh-huh.
Ms. Wasserman Schultz. And you are aware the bill you
rallied for was funded through the Department of Justice, Yes?
Ms. Willard. Yes.
Ms. Wasserman Schultz. Okay. Now, that was 2008. But, Ms.
Willard, you supported the Menendez legislation when he and I
unveiled it at a Senate press conference this May, didn't you?
Ms. Willard. Yes.
Ms. Wasserman Schultz. Okay. You also forwarded Senator
Menendez's office a press release that you sent to the Ed Tech
Listserv, which again you stated you were exceptionally
delighted with the language of the bill. Your words, right?
Ms. Willard. It was a significant improvement over the----
Ms. Wasserman Schultz. But the words you used was
Ms. Willard. Yes.
Ms. Wasserman Schultz. You don't seem exceptionally
delighted today. And in that e-mail, you said we were headed in
the right direction, and you recommended your followers contact
their Representatives and Senators to support this legislation,
Ms. Willard. Uh-huh.
Ms. Wasserman Schultz. You also e-mailed reporters from the
Associated Press and the New York Times asking them to write
favorable stories about that legislation, our legislation,
Ms. Willard. Correct.
Ms. Wasserman Schultz. And that Senator Menendez and I were
to be congratulated on this very positive step forward.
Ms. Willard. Yes.
Ms. Wasserman Schultz. So at the very least, you would
agree that you have been very inconsistent on this issue.
Ms. Willard. Correct.
Ms. Wasserman Schultz. Okay. Well, it is hard for us to
take your testimony seriously and treat you as an expert when
you have been all over the board on the same bill with the same
Ms. Willard. This bill has been amended. The Menendez bill
did not focus exclusively on Internet crime. This bill has now
admitted an involvement with the Department of Education and
the Department of Mental Health.
Ms. Wasserman Schultz. The Menendez bill has not been
amended. It is the same language.
Ms. Willard. Your bill is focusing solely on Internet
Ms. Wasserman Schultz. No, it is not. That is absolutely
not the case.
Ms. Willard. We need to address----
Ms. Wasserman Schultz. Have you read my bill?
Ms. Willard. Yes. We need to address----
Ms. Wasserman Schultz. You have read the bill that is
before this Committee?
Ms. Willard. Yes. We need to address these issues in a
collaborative fashion, and it needs to involve the Department
of Mental Health and the Department of Education.
Ms. Wasserman Schultz. Well, this bill focuses on Internet
safety education, not Internet crime. So I think you should
reread the bill so that you can understand its focus better.
And I would be more than happy to sit down with you and work
with you to address some of your concerns. But I think we both
have to be on the same page first before we haul off and
criticize legislation that, A, we supported before and, B, we
don't seem to understand today.
Thank you. I yield back the balance of my time.
Mr. Scott. Thank you.
And we had a couple of other questions. One, it seems to me
that if we are going to reduce cyberbullying, it is a lot less
complex dealing with the education program, as the gentlelady
from Florida has offered, because you don't get into the
Mr. Silverglate, are there constitutional problems in
reducing cyberbullying with what are essentially education
Mr. Silverglate. No. I don't see any constitutional
problems with that. I didn't even mention it in my testimony.
That is just a question of whether you are likely to get your
money's worth, and that is a judgment that I really don't have
the experience to make.
Mr. Scott. Now, about every night you have cable news
commentators insulting each other with the intent to harass or
cause substantial emotional distress to each other. If they did
that over the Internet, if that was streamed over the Internet,
would that be a crime under H.R. 1966?
Mr. Silverglate. Well, I do think that there are unforeseen
dangers in this kind of legislation using terms which
historically have given us a lot of difficulty in definition.
The thing about State common law jurisprudence is that it
has been around a long time. Definitions have been honed over
the centuries, and at various States we have a pretty good idea
what we mean by ``harassment.'' But the Federal--in Federal
law, I think it is really an invitation to constitutional
mischief. And since State law, it seems to me, does deal
adequately with the problem of harassment, I don't know why we
would be wanting to get into a whole new jurisprudential arena.
I think that the transfer, the movement of the harassment
concept front the civil tort arena to the Federal criminal
arena, it is just an invitation into what I call constitutional
mischief, and a lot of people are going to end up convicted of
crimes that I think most people in this room would agree should
not be crimes. So it seems to me very problematic and no real
Mr. Scott. Now, is there a difference between e-mailing
somebody directly and posting something somewhere on the
Mr. Silverglate. One of the things that concerns me is that
when Federal law, Federal legislation begins to focus on things
like harassment or threats, it mostly focuses on the medium
rather than on the actual act. So I think we are more afraid,
if I can use that term ``more afraid,'' of communications that
go over channels that we are less familiar with, that society
has less experience with. I think there is still a certain
amount of cyber fear that goes into legislation such as is
being proposed, and I think we should try to not focus so much
on the medium and to focus instead on the substance of the
You know, we had this idea that children are sitting in
front of a screen, and Lord knows what they are saying, and
Lord knows what they are reading and what they are doing. There
is a certain amount of fear factor in that. If we try to factor
that out, I think we will get back to the notion that State law
really does handle this pretty well. It should not be a subject
of Federal criminal interest.
Mr. Scott. When does posting things on the Internet become
so harassing that it becomes a crime? Professor Palfrey, do you
have a comment on constitutionality of posting things on the
Internet that may--if somebody goes and looks at it, might be
insulted and, because of youth, traumatized?
Mr. Palfrey. I certainly share the view that this is a
horrible thing, and we should apply many approaches to address
it. But I share Mr. Silverglate's view on the constitutionality
Mr. Scott. Mr. O'Neil, do you have any other comments on
Mr. O'Neil. These cautions, I think, are very well taken.
And the need for sharper definitions seems to me part of the
next step in the maturation or development of 1966.
Mr. Scott. Would there a difference between posting
something on the Internet?
Mr. O'Neil. Yes. And that is why I specifically urge that
one of the requirements of any such--one of the elements of any
such offense should be evidence that a particular person or
victim was targeted.
Mr. Scott. But you can have somebody's name posted.
Mr. O'Neil. I don't think that is enough. It really has to
be person-to-person evidence not only of the kind of intent
that is spelled out in 1966, but a following paragraph which
describes the process for identifying targeting of a particular
person and then----
Mr. Scott. If you posted very insulting information on the
Internet, and even if it is true, it can be traumatizing,
invasion of privacy. How bad, how--where is the line between
teasing and criminal?
Mr. O'Neil. Nothing is said here about truth or falsehood,
but I would assume that only harassing statements which were
false and known to be false would satisfy the intent
requirement of the first paragraph. And if it is simply
teasing, or if it is true but being misused, if it is, let us
say, an invasion of privacy, I don't think you ought to get
beyond the first paragraph even to the consideration of
targeting and impact or effect in the second----
Mr. Scott. Well, some things could be--you could be
racially insensitive, appearance insensitive, and tease someone
into the point of trauma.
Mr. O'Neil. I don't think that is nearly enough. And such a
statute, it seems to me, ought to be structured so that
statements of that kind could not be caught. I think Mr.
Silverglate issues a very strong warning, which I fully share,
that a criminal law of this kind could be abused, it could be
misused. It could pick up all sorts of just unpleasant adverse
insults and so on. It has got to be written in such a way that
that can't happen.
Mr. Scott. Ms. Warren, can truthful insults get to the
point where they would be traumatizing?
Ms. Warren. I believe so, yes, and especially if two
teenagers. You know, you have to understand that as we are
talking about teenagers, there are a lot of things still
developing in their minds and in their hearts, and they are
especially vulnerable during that time. Some of the things that
happened, as we have heard today, can affect them for their
Mr. Scott. Thank you.
Mr. Gohmert. Just briefly follow up on a couple of things.
To follow up on that, one of the comments that has been--one of
the things that has been discussed is the conveyance of naked
pictures and then those being broadcast throughout the
Internet. They are true pictures, they are accurate pictures,
and yet the purpose was clearly to harass, intimidate, and
belittle, hurt the individual who was in the pictures. So I get
the impression that those--even though they are true and
accurate, that that is not something that is going to be
excluded under what is being proposed here, which, again, opens
the door to a great deal of danger. So that is a concern.
I also wanted to make----
Mr. Scott. Would the gentleman yield?
Mr. Gohmert. Yes. Sure.
Mr. Scott. I think the question would have to be asked in
such a way that the picture was taken of an adult and
transmitted to adults. Once you get into children, you have
some opportunity to deal with it as child pornography. So long
as it is not obscene for adults, you would have the
Mr. Gohmert. But the example being given is a juvenile
having naked pictures of themselves transferred or sent to a
boyfriend. So they are the ones that took them, they sent them.
But then it was the release of those pictures publicly that was
intended to harass and belittle, and that is a problem.
But I want to make sure everybody understood, under Federal
laws, 18 U.S.C. 2261(a) prohibits an individual from using the
mail, any interactive computer service, or any facility of
interstate or foreign commerce to engage in a course of conduct
that causes substantial emotional distress to that person or
places that person in reasonable fear of death. 18 U.S.C. 875
makes it a crime punishable by up to 5 years in prison to
transmit any communication in interstate or foreign commerce
containing a threat to injure another person.
So there are some bills--some laws out there dealing with
this issue to some extent. But I did want to make clear that my
position was not mischaracterized. My friend Ms. Wasserman
Schultz, I believe, has the very noblest of intentions with
this proposal here. No question about her intent. It is nothing
but noble and good. But I believe I understood her to
characterize part of my position is, quote, that everything is
just fine. And that is not my position. There is nothing fine
about people being belittled, harassed, intimidated over the
Internet or any other way.
So this is a rhetorical question that I would conclude
with. But is this really an issue of lack of technical
understanding of the Internet, or is it a lack of morality?
Chuck Colson once said, you can't demand the morality of
Woodstock and not expect a Columbine. If the morality is if it
feels good, do it, then somebody is going to wonder if it feels
good to belittle somebody over the Internet or shoot somebody
or harm somebody. That will happen. We have got to come back
around to a sense of morality that has been a problem
throughout the ages.
But I thank you for the time and yield back.
Mr. Scott. Thank you.
Mr. Gohmert was reading the stalking prohibition, and it
says: Causes substantial emotional distress or what we would
call threats of serious bodily harm, which would be easy. But
``causes substantial emotional distress.'' I think Professor
O'Neil was saying that you would have to connect it with actual
harm. And if you have actually caused substantial emotional
distress, that would--that psychological damage would qualify
for what you were talking about?
Mr. O'Neil. It would have to be, I think, medically
certified. It really would have to be provable, and it would
have to be significant. Otherwise I just don't think it is a
Mr. Scott. Thank you.
I would like to thank our witnesses for their testimony
today. Members may have additional written questions for the
witnesses, which we will forward to you and ask that you answer
as promptly as you can so that the answers may be part of the
We have received written testimony from the ACLU and from
Baron Zoker and Adam Thayer, which will be included in the
record, without objection.
Without objection, the hearing record will remain open for
1 week for the submission of additional materials.
And, without objection, the Subcommittee stands adjourned.
[Whereupon, at 5:05 p.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record