A brief background: The Rutgers student was allegedly videorecorded via his roommate's webcam, without his consent, in his dorm room having a romantic/sexual encounter with another man. The roommate then distributed the video via the Internet. Allegedly, the student being taped committed suicide the next day.
The inference from press reports is that the humiliation of the taping and distribution of these private moments led to the suicide. This inference -- which has not been shown to have any factual basis -- may lead a drive towards serious criminal charges against the roommate and another friend whose computer he may have used to record the encounter remotely, who were arrested earlier this week on charges of "invasion of privacy." This new crime is a felony and does expose them to jail time. However, the "hate crime" push may lead to federal criminal charges on the basis of civil rights violations.
The actions of the two Rutgers students were not right; they were immoral, disrespectful and harmful. However, there is no evidence this was even bullying behavior and may have been nothing more than prankish, juvenile fun showing that they did not appreciate how embarrassing this could be to the student being recorded.
There are other issues here. If "invasion of privacy" is a crime -- and I for one think this is ripe for a strong court challenge -- then one must ask what gives rise to a valid expectation of privacy. I note that the student alleged to have set up the webcam did so...in his own dorm room. This student set up a webcam to record what was going on in his own room while he was out.
The transmission of images depicting sexual activity without the consent of the actors is another matter. This is the activity which common sense -- which often is uncommon -- dictates an expectation of knowing this is wrong (at least morally). Note that a crime containing this concept as one of its elements has not been charged (well, it's only been a few days) but I would expect an effort to be made to do so. However, there are two hurdles which I foresee.
The first hurdle is the ability to establish the absence of consent. The problem here is that the best witness for the prosecution -- the young man presumed dead -- is unavailable, while his alleged sexual partner has yet to publicly surface (and one would hope that the authorities have identified and questioned him and secured his agreement to keep all this information confidential in order to preserve and protect the ongoing investigation). The second man may be able to claim he gave no consent to being recorded, but then the issue becomes which roommate was at fault for the secret recording.
It can be inferred from his presumed suicide that the deceased roommate did not consent to the distribution. It is the distribution of the images that may have sparked the embarrassment and presumed suicide, and that act -- not the recording without consent -- may be the genesis of a charge. However, it is plausible that the young man did consent to being recorded by his roommate. In that case, we could have a defense theory that the young man's sexual partner was lured by the deceased young man into his own dorm room to record the encounter.
Finally, do not forget the still-common element in any traditional criminal charge of criminal intent (notwithstanding the current trends towards criminalizing negligence and imposing all sorts of "strict liability" standards to eliminate actual intent as ann element). Where was the intent to do serious, criminal harm -- as opposed to merely have some stupid fun?
It is worth remembering that any criminal charge needs to meet the requisite standard of proof of "beyond a reasonable doubt." The danger to the Rutgers students is that they may be threatened especially harshly, not only due to anticipated political pressures but also because the legal or factual foundations for any charges against them may be particularly weak. (In my opinion, the severity of threats often moves inversely to the validity of the evidence or the strength of the law, reflecting the prosecution's awareness of the weakness of its legal or evidentiary position.)
The young man's apparent suicide is an unquestioned tragedy. That does not mean that these two other Rutgers students, both freshmen aged 18, committed any crime. Making fun of someone is not a crime; even "bullying" is not a crime, however distasteful it is. The zeal to make these acts crimes and to throw some young people in jail for acts of abject stupidity threatens to criminalize certain speech when the target of the speech finds it offensive, vulgar or harmful to his feelings. We should resist the movement towards a society where someone can claim -- however validity -- that his or her feelings are hurt or reputation has been damaged and then push to criminalize the speaker.
Hurt feelings, shame, regret, embarrassment, humiliation: None of these make a crime. Those who wish to criminalize cyberbullying should be mindful of the implications for free speech.
Eric Dixon is a New York small business lawyer who handles investigations, regulatory matters and civil rights and constitutional matters. Mr. Dixon is a 1994 graduate of Yale Law School and is admitted to practice in both New York and New Jersey. Mr. Dixon comments often on issues involving privacy and technology and is a member of the New York City Bar's Science and Law Committee. Mr. Dixon is available for comment or consultation at 917-696-2442 and by e-mail at edixon@NYBusinessCounsel.com