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The eBay cyberstalking case is a reminder that online harassment is a federal crime
THE EBAY CYBERSTALKING CRIMINAL CASE: WHAT YOU NEED TO KNOW
INTRODUCTION
Sentencing proceedings are underway in the infamous eBay cyberstalking federal criminal case, and a federal judge just handed the first defendant an 18-month prison sentence.
In comments reported by Bloomberg, US District Judge Allison Burroughs called the case — in which eBay employees harassed a husband-and-wife publishing team with online threats, a funeral wreath, live cockroaches, and a bloody-faced pig mask — “just nuts.”
Most people know that physical stalking can lead to criminal charges. But are people sufficiently aware that online threats and harassment of others is a federal crime that can land them in prison?
DISCUSSION
Generally, cyberstalking is the use of the Internet or other electronic means to stalk or harass a person, group, or organization. It can involve false accusations, defamation, slander, and libel, also including monitoring, identity theft, threats, vandalism, solicitation for sex, doxing, or blackmail.
Cyberstalking sometimes goes hand in hand with offline or physical stalking, though not always.
Cyberstalking is a criminal offense under various state anti-stalking, slander, and anti-harassment laws. A state law conviction can result in restraining orders, probation, or criminal penalties, including time in prison. For example, in California, stalking is a criminal offense, whether virtual or offline.
Cyberstalking is a criminal offense at the federal level under several US anti-stalking, slander, and harassment laws. Specifically, the Violence Against Women Act, passed in 2000, made cyberstalking a part of the federal interstate stalking statute. (See the complete US Federal Anti-Cyber-Stalking law is at 47 USC § 223.) But most cyberstalking statutes still only exist at the state level, with only a few states having both stalking and harassment statutes that criminalize threatening and unwanted electronic communications.
In the federal system, sentences can range from 18 months in prison, a $10,000 fine for a fourth-degree charge, to ten years in prison, and a $150,000 fine for a second-degree charge.
The Recent eBay Cyberstalking Case
The recent eBay case made headlines about the perils of cyberstalking and has people wondering where the federal government draws the lines regarding aggressive behavior online.
In 2020, federal prosecutors charged seven former eBay employees for leading a cyberstalking campaign targeting the editor and publisher of a newsletter for criticizing eBay in ways its corporate executives did not like.
Federal prosecutors charged eBay’s former Senior Director of Safety & Security, James Baugh, with conspiracy to commit cyberstalking and conspiracy to tamper with witnesses. They also charged David Harville, eBay’s former Director of Global Resiliency, on the same conspiracies: to commit cyberstalking and witness tampering. Another four people face charges for participating in these criminal conspiracies.
According to the charging documents, the cyberstalking campaign targeted a couple who edited and published an online newsletter covering e-commerce companies such as eBay. Certain members of the executive leadership team at eBay disliked the newsletter’s posts, often taking issue with its content and the anonymous comments underneath the editors’ stories.
In August 2019, after the newsletter published an article about litigation involving eBay, two eBay executive leadership team members sent or forwarded text messages suggesting that it was time to “take” the newsletter’s editors “down.” Immediately, members of the alleged conspiracy began a 3 part harassment campaign against the couple.
The eBay case involves bizarre harassment activities, both online and offline. The harassment offline included delivering a preserved fetal pig, a bloody pig Halloween mask, a funeral wreath, and pornography to the victims’ home.
The cyberstalking charges stem from a series of private Twitter messages and public tweets criticizing the newsletter’s content and threatening to visit the victims in person. The government alleges that those involved planned a series of disturbing messages, culminating with “doxing” the victims (i.e., publishing their home address).
In a bizarre attempt to turn the newsletter editors into eBay fans, the conspiracy planned the following. A former Santa Clara police captain would approach the victims with an offer to help stop the harassment that the conspirators were secretly causing, which was supposed to generate goodwill towards eBay and favorable coverage in the newsletter.
The conspiracy also conducted physical surveillance of the victims at home, planning aggressive steps like breaking into the garage, putting a GPS tracking device on their car, and lying about the victims if questioned by police.
When the victims noticed the surveillance, they involved their local police, and an investigation ensued. As the police and eBay’s lawyers investigated, the co-conspirators deleted harmful digital evidence, obstructing what by then became a federal investigation.
Conspiracy to commit cyberstalking and conspiracy to tamper with witnesses each carries a sentence of up to five years in prison, three years of supervised release, a fine of up to $250,000, and restitution.
The Financial Crimes and Cyber Fraud units are prosecuting the case.
18 Months In Prison
Former eBay security manager Philip Cooke was the first of seven former eBay employees to face sentencing. Prosecutors requested a two-and-a-half years prison sentence for the three-week nightmare that the victims suffered.
A Massachusetts judge sentenced Cooke to 18 months in prison for his role in this bizarre and intense stalking campaign. Cooke pleaded guilty nine months earlier to conspiracy to commit cyberstalking and conspiracy to tamper with witnesses.
Cooke, a former police officer, admitted to attending a 2019 meeting where eBay employees plotted the Twitter harassment campaign. He was involved in later discussions about mailing threatening items and surveilling the couple’s home. He also helped sabotage a police investigation into the crime.
In addition to the 18-month prison sentence, Cooke received three years of supervised release and a $15,000 fine. The victims filed a civil lawsuit against eBay executives and the seven eBay former employees, including Cooke, and that case is pending.
In his defense, Cooke claimed that he advised against the stalking campaign and that the orchestrators never carried out many of the planned activities. Cooke also focused on the work culture at eBay. He blamed his rogue behavior in part on his drinking problem, which was made worse by eBay’s drinking culture. Cooke claimed that drinking was “part of the culture, with alcohol present throughout the office space where it was typical to take morning shots of alcohol with coworkers.”
It is hard to determine precisely how these arguments influenced the sentencing court. Still, we note that Cooke received the minimum prison sentence of 18 months, which is less than prosecutors requested.
Prison Professors, an Earning Freedom company, assists clients with crafting powerful sentencing narratives that can help mitigate the fallout from a federal criminal prosecution.
*Additional Resources from our Prison Professors and White Collar Advice Blogs:
Your Federal Sentence Reduction Won’t Happen By Accident
CONCLUSION
The eBay case is a bizarre case that included very aggressive stalking and other conduct both online and offline. The overall conduct undoubtedly played a part in the federal prosecutions and convictions.
However, cyberstalking alone — harassing and threatening electronic communications — can be charged as a federal crime. Cyberstalking is subject to prosecution even absent any offline conduct or conduct as severe as the one in the eBay case. The online world is not an anything-goes environment, and the stakes are serious.
