LEGAL OPINION

This is my opinion to your question regarding your experiences with the unknown person.

BRIEF FACTS

From your instructions, I gathered the following facts. First, an unknown person sent a taxi driver to your address. The unknown individual had lied to the taxi driver that you are his sister. The individual demanded that you enter the taxi driver’s car. The individual also got access to your phone number and called you many times and threatened to harm you and to bomb your car.

ISSUES

The facts raise the two issues that you state in your instructions:

  1. What crime has been committed;
  2. What law has been violated

ANALYSIS OF THE ISSUES

I will then proceed to analyze the issues here below:

  1. What crime has been committed
  2. Under California Law
  • Electronic cyber harassment

California Penal Code § 653.2 PC makes it a crime to send electronic communications (such as emails or text messages) with the intent of placing the recipient in reasonable fear for his or her safety or that of his or her immediate family. This offense is a misdemeanor punishable by up to one year in jail and fines of up to $1000.00.

  • Cyberstalking

California criminalizes cyberstalking in California Penal Code 646.9. Under 646.9, it is a crime for a person to willfully, maliciously, and repeatedly follow, harass, or threaten another person to the point that the victim is reasonably afraid for their safety or the safety of their family. The crime is punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison.

  • Threats

Under California Penal Code 422, it is unlawful to communicate criminal threats to a third party. A criminal threat is limited to a threat to unlawfully kill or cause great bodily injury to another person. In addition, the defendant must have intended that the threat be carried out. Threats can be communicated by electronic communication, including messenger apps, SMS texts, or email. Finally, the threat must be so clear and immediate that the victim understood it to be an actual threat. The victim must also be reasonably afraid for their safety or the safety of their immediate family. The punishment for this crime shall be imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

  1. Under Federal Law
  • Unauthorized Information

This crime is provided under 8 U.S.C. 1030 (The Computer Fraud and Abuse Act). The Act creates criminal liability for a person who obtains any information from any internet-connected computer without authorization. An additional criminal remedy exists for those who access a computer with the intent to defraud.

  • Eavesdropping

This crime is provided under 18 U.S.C. 2511. If non-consensually published material was originally obtained by the perpetrator’s intercepting an electronic communication, he may be criminally liable.

  • Interstate Threats and Extortion

This crime is provided under 18 U.S.C. 875. A person who publishes or threatens to publish private photos or videos of another with the intention of forcing the victim to do something he/she would not have done otherwise may be charged with extortion, if the perpetrator communicated with the victim via interstate commerce channels (phones, computers, internet, etc.)

  • Interstate Stalking

This crime is provided under 18 U.S.C. Section 2261A. Section 2261A (1) makes it a federal crime to travel across state, tribal or international lines to stalk another person with ” the intent to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate another person.” Furthermore, the travel must result in reasonable fear of death, serious bodily injury or substantial emotional distress either to a victim or a victim’s family member, spouse or intimate partner.  Section 2261A (2) makes it a federal crime to stalk another person across state, tribal or international lines, using regular mail, email, or the Internet. The stalker must have the intent to kill, injure, harass, intimidate or cause substantial emotional distress, or to place a victim or a victim’s family member, spouse or intimate partner in fear of death or serious bodily injury.

  • Interstate Domestic Violence

This crime is provided under 18 U.S.C. Section 2261. Section 2261(a)(1) makes it a federal crime to travel across state, tribal, or international lines with the intent to kill, injure, harass, or intimidate a spouse or intimate partner and to commit, or attempt to commit, a crime of violence against that spouse or intimate partner.

  • Interstate Violation of a Protection Order

This crime is provided under 18 U.S.C. Section 2262. Section 2262(a)(1) makes it a federal crime to travel across state, tribal, or international lines with the intent to violate a protection order and to subsequently engage in conduct that violates that order.

  • Harassing Telephone Calls in Interstate Communications

This crime is provided under 47 U.S.C. Section 223(a)(1)(C). This statute makes it a federal crime to use a telephone, the internet, or any other telecommunications device to annoy, abuse, harass, or threaten another person at the called number.

  • Falsifying Caller ID

This crime is provided under the Truth in Caller ID Act. It is possible for callers to disguise their identity by falsifying the telephone number that appears on the recipient’s caller ID. This is called “caller ID spoofing” and was made illegal by the Truth in Caller ID Act, which prohibits the transmitting of misleading or inaccurate caller ID information with the intent to defraud, cause harm, or wrongfully obtain anything of value. Violators are subject to a penalty of up to $10,000 per violation. If you suspect that caller ID information has been falsified, you can file a complaint with the FCC.

 

  1. What law has been violated
  2. Under California Law
  • Civil harassment

Civil harassment is found under Code of Civil Procedure section 527.6. The civil harassment law defines “harassment” as: Unlawful violence, like assault or battery or stalking, or a credible threat of violence, and the violence or threats seriously scare, annoy, or harass someone and there is no valid reason for it. “Credible threat of violence” means intentionally saying something or acting in a way that would make a reasonable person afraid for his or her safety or the safety of his or her family. A “credible threat of violence” includes following or stalking someone or making harassing calls or sending harassing messages (by phone, mail, or e-mail) over a period of time (even if it is a short time).

  1. Under Federal Law
  • Unauthorized Information

This is provided under 8 U.S.C. 1030 (The Computer Fraud and Abuse Act). The Act also creates civil liability for a person who obtains any information from any internet-connected computer without authorization. An additional civil remedy exists for those who access a computer with the intent to defraud.

  • Eavesdropping

This is provided under 18 U.S.C. 2511. If non-consensually published material was originally obtained by the perpetrator’s intercepting an electronic communication, he may be liable to be sued in Civil Court.

NEXT COURSE OF ACTION?

After discussing the issues, I would further provide guidance on what you need to do to get legal address.

  • Restraining Order under C.C.P. §527.6

Californians who are harassed or stalked online may file a request for a restraining order against the person harassing or stalking them. If granted, it prohibits the offender from intimidating, stalking, threatening, or otherwise harassing you. In California, a restraining order may be enacted for up to five years.

  • Restraining Order for Cyberstalking under 646.9(k) PC

If a perpetrator is found guilty of cyberstalking, the court will consider a restraining order. If granted, the offender is not permitted to contact the stalking victim. Restraining orders under this section can last for up to 10 years, depending on the seriousness of the offense. Please note that this restraining order is only issued after the individual has been found guilty of cyberstalking, after a formal trial is concluded.

  • Requests to California Corrections to Be Notified of Prisoner Release

A victim, family member, or witness may request notice of when a convicted stalker will be released from jail or prison. Notice must be provided by phone or mail 15 days before the stalker is released.

  • Prevention of Release of Automobile Registration & Driver’s License Records

Stalking victims may request that the California Department of Motor Vehicles keep their driver’s license records and automobile registration confidential. They may also request that voter registration information, changes to their names or addresses, and other private information be kept confidential.

  • Lawsuit

For the civil wrongs, you may file a lawsuit against the individuals for civil harassment, eavesdropping, unauthorized information, and other common law torts including intentional infliction of emotional harm.

Let me know how you may want to proceed.

 

Thanks so much!

 

 

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