In addition to being the world’s greatest communications
medium, the Internet is one of the most effective conduits for
fraud, illegality, and other mischief. Moreover, perpetrators, and
the general public, tend to think that this kind of misconduct is
But Internet mischief may be more catchable than is generally
assumed. And the tide of public indifference may have turned; law
enforcement and aggrieved persons are becoming more aggressive at
asserting their rights.
Consider some of the well-known pieces of Internet mischief (a
term I’ll use to encompass criminality, fraud, revenge, hate,
and other intentionally harmful activities):
- The recent viral TikTok video providing how-to instructions for
stealing certain Kia and Hyundai vehicles.
- Deliberate misinformation from domestic extremists, foreign
governments, sophisticated fraudsters, or others.
- Revenge porn, in which a former intimate partner posts
embarrassing photos or videos.
- Fake online reviews and targeted campaigns in which people hurt
by business, legal, or personal affairs make hurtful posts directed
at their perceived enemies.
- Common frauds, in which fake emails or websites are used to
entice people to send money to the perpetrators.
There are so many new and different forms of Internet mischief
that it has spawned a whole new lexicon – for example, doxing
(publishing private information on the internet); swatting (falsely
reporting crimes and sending law enforcement after innocent
people), revenge porn (non-consensual intimate imagery
distribution), phishing (sending fake emails to induce individuals
to reveal personal information), cyber harassment, and cyber
A central concern with all of these activities is that they can
be carried out covertly without traceability to the perpetrator,
thus enabling the perpetrator to escape detection, responsibility,
and sanction. Also, there seems to be a general feeling that
Internet expression, no matter how harmful, evades legal
accountability, perhaps because of the First Amendment, inadequacy
of current laws, or social acceptance of extreme online
In fact, however, neither our legal system nor our technological
investigative capabilities are as impotent as are assumed.
Initially, the simple anonymity in which most Internet
mischief-makers wrap themselves isn’t invulnerable. They often
sign up for web email using fake identities, and then use them or
other fake IDs, and the email addresses, to register on social
media. Those who are a bit more sophisticated may use virtual
private networks to further hide themselves. Depending on the
activity, torrents or other software designed to prevent
traceability may be part of their scheme.
But shrewd investigators can often find the perpetrators despite
these shields. I’ve subpoenaed web email providers, and service
providers, to trace back fake email accounts to the original
perpetrator. Special Counsel Robert Mueller was able to trace
Russian election interference on the Internet back to 12 specific
people operating out of two specific military units at two specific
addresses in Moscow. He laid out their conduct in great detail in
Similarly, many revenge porn posters thought they had cleverly
hidden their traces, but many successful revenge porn prosecutions
and civil claims have identified, caught, and sanctioned
Then there’s the difficulty of conducting any significant
operation totally in Internet darkness. In one notable case, a
fraudster took many precautions in setting up a magazine copyright
infringement scheme, registering a domain name through a post
office box in Antigua, and using servers in renegade foreign
jurisdictions. But he was caught when a lawyer for the magazine
industry found a trademark application he filed for his
Perhaps the biggest impediment to catching Internet mischief has
been that many victims, and even some law enforcement agencies,
have assumed that our laws don’t reach this kind of mischief.
But some gaps in the law have been filled (for example, hacking and
revenge porn laws), and traditional legal tools can still reach
much of this misconduct.
Take the viral TikTok video instructing on the stealing of cars.
It’s not protected speech, particularly in light of the 1997
Rice v. Paladin Enterprises, Inc.
decision by the now-famous Fourth Circuit Judge J. Michael Luttig
concerning the book “How to Hire a Hit Man.” Judge
Luttig’s ruling held that “speech that constitutes
criminal aiding and abetting does not enjoy the protection of the
First Amendment.” Law enforcement can, and should, find and
prosecute the creators of the car stealing video. Victims of thefts
that followed the video’s instructions may even have civil
claims. The recent successful victims’ civil lawsuit against
the organizers of the Charlottesville white supremacy rally,
Sines v. Kessler, demonstrates
that victims can seek recompense for harm deliberately set in
motion through Internet exhortations to illegal conduct.
Civil lawsuits are being conducted against alleged
misinformation providers. The prominent Dominion Voting System
lawsuits against Fox News, Rudolph Giuliani, Sydney Powell and
others; the similar Smartmatic lawsuits; and the case currently
being brought by Georgia poll worker Ruby Freeman against Gateway
Pundit, all assert claims, based on defamation and related laws,
against speakers who they claim deliberately and knowingly made
false and hurtful statements.
Misinformation that hurts society generally and not specific
individuals probably can’t be addressed civilly, and of course
any prosecutions would need to be sensitive, to protect First
Amendment protected expression. But if Mueller could identify
specific Russians who were responsible for misinformation out of
Moscow, surely law enforcement can identify and hold accountable
the relatively unsophisticated Americans who have created
misinformation campaigns far outside the bounds of legitimate
For years, Internet mischief makers acted as if they possessed a
“Get out of jail free” card, because of their
victims’ fears about the difficulty of finding the perpetrators
and bringing them to justice. But the tide may be turning, toward a
greater willingness to investigate and prosecute.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.