Over the past few decades, technology has experienced exponential growth, and one area where it is easy to see that is in the evolution of the cell phone. Mobile devices can do almost anything these days, and the Legislature is cognizant that there are situations where the use of technology can form the basis for criminal charges. One such example of this is in the context of cyberstalking, which is a Class 2 misdemeanor punishable by a maximum sentence of 60 days. Similar to stalking, which is further discussed here, there are a few actions prohibited by the cyberstalking statute, North Carolina Gen. Stat. § 14-196.3, all of which involve either an “electronic communication” or “electronic mail.” Subsection (b)(1) makes it a crime to email or communicate electronically a threat to hurt the recipient, their property, or any member of their family, or to attempt to extort anything from the person. And subsection (b)(4) makes it a crime to let anyone use their device to do so (or to do any of the other types of cyberstalking). Subsection (b)(2) criminalizes repeated communications for an improper purpose (i.e. to annoy, abuse, scare, harass, embarrass, or threaten), while subsection (b)(3) makes lying about something bad happening to the recipients family a crime, if one of the aforementioned improper purposes is present. Also included in the statute is an exception which allows and protects constitutional speech dealing with “political views” or distributing “lawful information[.]”

There are other crimes that have been created to deal with behavior that many think of when they think of cyberstalking. The use of telephones led the Legislature to pass North Carolina Gen. Stat. § 14-196, the statute which deals specifically with telephone harassment. There are several variations of this Class 2 misdemeanor (punishable by a maximum sentence of 60 days), although only a few will be discussed in this article. Subsection (a)(3) is what most think of in the context of cyberstalking, as it criminalizes repeated phone-calling for an improper purpose (i.e. to abuse, annoy, threaten, scare, harass, or embarrass), and subsection (a)(6) also makes it a crime to allow anyone to use their phone to do so (or do any of the other types of harassing phone call). Subsection (a)(1) prohibits using language that is “profane, vulgar, lewd, lascivious”, whereas subsection (a)(2) makes it a crime to threaten to hurt the recipient, their property, or any member of their family.

It can be extremely difficult to prove cyberstalking and harassing phone calls, and trials often spend significant amounts of time proving who is calling on the phone or sending the electronic communication. In the event you do not see the person type the email or text, or actually hear their voice on the phone (either by picking up or if they leave you a message), evidentiary problems can (and often do) arise. What constitutes an electronic communication or electronic mail is statutorily defined, and the definitions provided are extremely broad (most likely to help the statute keep up with the rate of technological growth). While common sense may lead one to believe that it had to be the person whose name is attached to the email address or whose phone number is attached to the phone, proving beyond a reasonable doubt, as is required in criminal court, that they were the actual actor can be quite difficult.

At Arnold & Smith, PLLC, we can help you navigate the court-system; both in terms of helping you fight against charges of cyberstalking and harassing phone calls, and protecting you from someone who you feel is violating criminal statutes by their repeated communications with you. There are civil protections, discussed more fully in the articles about restraining orders and domestic violence orders of protection, that our attorneys are also equipped to help you with. We have both civil attorneys and criminal attorneys who are ready to help you, no matter your situation.