Third Circuit Upholds Federal Cyberstalking Law

• Published date: 28 July 2022
• Subject Matter: Litigation, Mediation & Arbitration, Technology, Trials & Appeals & Compensation, Personal Injury, Security
• Law Firm: Venable LLP
• Author: Mr Lee S. Brenner and Shantel H. Asada

The United States Court of Appeals for the Third Circuit recently upheld the federal cyberstalking statute against a constitutional challenge. See United States v. Ho Ka Yung, 37 F.4th 70 (3d Cir. 2022). The Third Circuit narrowly construed the statute's intent element to require an intent to make the victim fear death or bodily injury or to cause the victim distress through threats or intimidation.

According to the opinion, the case begins with Yung's application to Georgetown Law. The admission interview went poorly, and Yung was rejected. In turn, Yung allegedly embarked on a cyber-campaign against the unsuspecting interviewer, including creating fake blog posts as the interviewer bragging about raping women and children, filing false reports accusing the interviewer of sexual assault, and impersonating the interviewer's wife in online sex ads. After the FBI became involved, Yung was charged with cyberstalking.

Under the federal cyberstalking statute, a defendant is a cyberstalker if he satisfies three elements:

Yung challenged the cyberstalking statute as overbroad and facially invalid under the First Amendment, arguing that the statute criminalized a substantial amount of protected free speech. The Third Circuit acknowledged that the statute's element requiring "intent to . . . harass [or] intimidate" could be read broadly to...