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F.S. 784.048 - Cyberstalking in Florida

Cyberstalking is a relatively new offense in Florida, being that it requires the use of technology that really only became prevalent in the last 20 years. The offense is outlined in a subsection of the state’s anti-stalking statute, F.S. 784.048, which passed in 1993. Florida was only the second state in the U.S. to criminalize stalking. The first was California, following the stalking-related homicide of actress Rebecca Schaeffer. 

Before stalking laws became commonplace, most states had some provisions outlawing “harassment.” Stalking is generally understood to be a form of harassment, but not all harassment is stalking. 

F.S. 748.048(1) explains that cyberstalking means engaging in a course of conduct to communicate or cause to be communicated - directly or indirectly - words, images or language by or through the use of e-mail or other electronic communications to a specific person in order to cause substantial emotional distress with no legitimate purpose. 

As our Broward County criminal defense lawyers can explain, to be considered “a course of conduct” under the law, there must be a series of actions taking place over a period of time, illustrating that these communications are connected in their purpose. 

Cyberstalking can also be charged if one unlawfully accesses or attempts to access another’s online accounts without their approval - inflicting substantial emotional distress without a legitimate purpose. 

Prevalence of Cyberstalking in Florida

Technically, cyberstalking can be carried out or inflicted upon anyone who uses technology. It often involves people who know each other, such as prior intimate partners. But sometimes it can involve strangers, which is particularly common in cases with minors and public figures. 

According to the U.S. Department of Justice, an estimated 5.2 million people were victims of cyberstalking and online harassment in a single recent year. More than 80% of all stalking cases involve the use of some type of technology. Of these:

  • 55% received unwanted text messages
  • 14% were tracked with a device or app
  • 22% were monitored with technology
  • 32% were monitored through social media
  • 66% received unwanted phone calls
  • 29% had explicit or personal information about them posted, or threatened to be posted (which can cross the line into sexual cyberharassment, as outlined in F.S. 784.049, also referred to as Florida’s “revenge porn” law). 

A DOJ survey of alleged cyberstalking victims, nearly 45% said it went on longer than a month and 35% said it went on longer than one year. Nearly one-third said they were contacted several times a day. 

Physical stalking (showing up at one’s home, workplace, school, etc.), is less common than cyberstalking, but some cases involve both. When cyberstalking is combined with physical stalking, it’s considered an escalation of danger that law enforcement and courts often take more seriously. 

That does not mean, however, that cyberstalking won’t have substantial consequences - even if you’ve never physically been in the presence of your accuser. It’s generally a first-degree misdemeanor, punishable by up to one year in jail. It can be bumped to a third-degree felony, punishable by up to 5 years in prison, if:

  • The victim is under 16.
  • A credible threat of physical harm is made.
  • The action is in violation of a protective injunction (i.e., a restraining order). 

Commonly related charges in Florida cyberstalking cases include:

A small number of cases might also involve violation of laws pertaining to firearms and illicit sexual activity. 

Freedom of Speech as a Defense in Cyberstalking Cases

One of the most fundamental rights in our constitution is freedom of speech – and it’s one that has been compellingly argued numerous times in cyberstalking. That doesn’t mean it’s an absolute defense, as not all speech is protected. In particular, speech that’s integral to a criminal act generally is not protected. 

As noted in the 1995 Florida Supreme Court ruling in Bouters v. State, “stalking falls outside the First Amendment’s purview.” But courts do have to strike a balance between free speech and undue prior restraint and the public interest in preventing harassment and stalking. 

We may see this argument raised more frequently given rising tensions between political factions. Of the 40% of Americans who say they’ve experienced online harassment, half cite politics as the suspected reason they were targeted. A growing number – particularly women – say it has led to more severe cyberstalking and sexual harassment, according to the Pew Research Center

Sharing differences of opinion on politics is protected speech – even when it’s colorful, passionate or unkind. The question is at what point does it cross the line to become harassment or stalking of another individual?

Skilled criminal defense attorneys can carefully analyze the evidence in your case to determine whether the correspondence in question may be constitutionally protected speech. 
Contact the experienced Fort Lauderdale criminal defense lawyers at The Ansara Law Firm, by calling (954) 761-4011 or toll-free at (954) 761-4011.

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