Intimidation Gone Digital: Witness and Victim Intimidation in the Age of Social Media

We live in the age of social media where much of our communication occurs through sites such as YouTube, Instagram, Twitter, and Facebook.  Phone calls and letters have been replaced by tweets, snapchats and status updates and our lives are lived for the world to see.  While such sites keep us connected and enable the type of instantaneous communication and access to information that was previously unattainable, social media has now become a vehicle for something much more sinister.  Increasingly social media is being used to intimidate victims, witnesses and criminal informants.  On November, 12, 2013, seventeen year old high school student Nasheen Anderson from East German Town, Pennsylvania was arrested and charged with witness intimidation and terroristic threats. Philadelphia police arrested the teen after he was linked to a Twitter account that named witnesses in several 2012 shootings and a June 2007 homicide.  The Twitter account contained pictures of sealed court documents.  One photo had the caption “EXPOSE ALL RATS” written below it.  Police believe that Anderson may also be behind the “rats215” Instagram account, which has since been shut down.  According to the Philadelphia Inquirer, this account revealed the identities of more than thirty witnesses to violent crimes in Philadelphia and also contained pictures, police statements and witness testimonies.

The Philadelphia District Attorney’s Office, who has described the problem of witness intimidation as reaching “near-epidemic levels,” announced that it intends to prosecute the seventeen year old as an adult.  This is just one of many recent cases where social media is being used to harass and intimidate witnesses and victims.  In October, a twenty six year old New York man was convicted on several counts of intimidating and tampering with witnesses after he posted witnesses’ testimonies and statements on Facebook.  Two of the witnesses received threats after the materials surfaced online and subsequently withdrew their testimony.  He faces up to four years in prison.  Similar cases have occurred in Philadelphia, Santa Fe, and Brooklyn.

Witness intimidation is a violation of both state and federal law.  Title 18 of the United States Code section 1512 (b) defines the crime of “tampering with a witness, victim, or an informant” as a federal crime:

           

          (b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—

           

            (1) influence, delay, or prevent the testimony of any person in an official proceeding;

            (2) cause or induce any person to—

                        (A) withhold testimony, or withhold a

record, document, or other object, from an official proceeding;

                        (B) alter, destroy, mutilate, or conceal an

object with intent to impair the object’s integrity or availability for use in an official proceeding;

                        (C) evade legal process summoning that

person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or

(D) be absent from an official proceeding to which such person has been summoned by legal process; or

            (3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation supervised release, parole, or release pending judicial proceedings; shall be fined under this title or imprisoned not more than 20 years, or both.

While witness intimidation is not a new practice, the use of social media for such ends is a new and growing trend.  According to the National Institute of Justice, physical violence, indirect intimidation, explicit or implicit threats of physical violence, property damage, and courtroom intimidation are all methods traditionally used to intimidate witnesses and prevent them from testifying.  However nowadays much of this has gone digital and people are intimidating witnesses by posting their pictures on social media sites, posting copies of witness testimonies online, and sending harassing messages and texts to victims and witnesses.  As the “anti-snitch” culture continues to grow, sites with databases exposing the identities of thousands of witness testifiers, are popping up everywhere and gaining a lot of traction.  Even more disturbing is the fact that this culture of intimidation has spread to prosecutors, jurors and even judges who are being filmed and photographed in court by associates and family members of the defendants as a means to affect the outcome of the trial.

This new form of digital intimidation is creating a slew of problems for the criminal justice system.  Often times prosecutors build the weight of their cases on witness testimony and therefore the withdrawal of such testimony is often crippling to a case.  It is typically very difficult to get witnesses to even testify to begin with especially in gang-related cases; with the growing anti-snitch movement, the pervasiveness of the social media and internet culture and the way it is being manipulated to intimidate witnesses and victims, the problem is likely to get worse before it gets better.  Intimidation through social media is growing so fast that law enforcement and the courts are scrambling to keep up.  One of the biggest hurdles they face is catching the offenders who can set up fake or anonymous accounts that are difficult to trace.  Although prosecutors have the ability to subpoena internet and social media account information, IP addresses, and phone records, even with this information it is still often extremely difficult to tie the crimes to a specific person.  Moreover, because everything is digital the effects of the intimidation and harassment truly know no bounds.  Social media has made witness intimidation possible even overseas.  For example, the Brooklyn District Attorney’s office has experienced an increase in the cases of Arab women reporting that their families abroad were threatened and intimidated through “phone calls, emails and social media postings” after filing domestic abuse charges against their spouses in the United States.

One solution that officials in the Justice Department are asking for is policy that would make public access to federal court documents online more difficult.  A few state courts are fighting to curtail digital intimidation by banning cellphones from their courtrooms.  Several courts across Massachusetts have taken this approach in response to complaints that witnesses and victims were being photographed and videotaped in court and this information was then being posted online.  In Illinois, courts in 48 out of the 102 counties have cell phone and electronic device bans and courts in Philadelphia are considering instituting similar restrictions.  Some states have even reached out to the social media sites directly, asking them to remove content that has been used to intimidate witnesses.  However with growing concerns of government interference in protected privacy areas, many social media sites have to walk the delicate line between protecting the privacy of their users and assisting with criminal investigations.

One thing that state courts can do to try to prevent digital witness and victim intimidation is to closely monitor who is going in and out of their courtrooms by having a check-in system where individuals attending court would be required to sign-in and leave their contact information with a court official.  This way if information from a trial was later used to intimidate victims and witnesses online, law enforcement agents would have a working list of possible suspects.  As a deterrence mechanism, states could also be required to post visible warning notices in all of their court buildings explaining what witness intimidation is and the possible consequences for those found guilty of the crime.  Lawyers also have a role to play in curtailing this problem.  Criminal defense attorneys can help by warning their clients about the implications of witness intimidation of any form.  The clients in turn can warn family members and associates to refrain from any form of intimidation online or otherwise.  Prosecutors and judges can help by pushing for harder sentences for those found guilty of digital intimidation thereby sending a clear message that digital intimidation cannot and will not be tolerated.

Technology and social media have become integral parts of our lives.  As digital intimidation continues to grow, so too must the methods that our criminal justice system is using to attack it.

Ifeoluwa E. Afolayan

Senior Staffer, Criminal Law Practitioner

Image from Facebook.com via Wikimedia Commons.