Disgruntled Law School Applicant’s Cyberharassment Ends With Narrow Court Ruling

Ho Ka Terrance Yung wanted to go to Georgetown University School of Law. He had good grades and good LSAT scores and arranged for an “alumni” interview—an interview with a former Hoya to accelerate his application process. The interview did not go well. Yung thought the alumnus was insensitive and rude. Ultimately, Yung was rejected from Georgetown and instead attended the University of Texas at Austin.

But for Yung, the clash with the Georgetown alumnus was not over. A year after the failed interview, Yung launched a campaign of harassment and intimidation against the interviewer. This included creating fake obituaries for the interviewer’s wife and son; social media profiles littered with Ku Klux Klan content created under the interviewer’s name and blog posts falsely attributed to the interviewer bragging about raping women, a boy and an eight-year-old girl. A Google search of the interviewer’s name revealed thousands of similar posts which led one reader to correctly observe, “Someone is really out to nail this guy to a cross.”

Next, Yung filed false reports against the interviewer. Posing as a female Georgetown applicant on law school forums, he accused the interviewer of groping, bigotry and of threatening professional retaliation. And in reports to the Better Business Bureau, he accused the interviewer of sexually assaulting a female associate and berating prospective employees. He “strongly encouraged [the interviewer’s employer] to fire this dirty old man.”

But Yung wasn’t done—his campaign of harassment made the leap from virtual to IRL. While impersonating the interviewer’s wife, he published an online ad seeking a sex slave. When one man responded to the ad, Yung ordered him to spy on the interviewer’s family. The wife, another ad claimed, “like[d] it when a man puts his hand around [her] throat and threaten[s] [her] with a knife” and “gun” before forcing her to have sex. Yung’s actions caused the interviewer’s family to receive hundreds of phone calls from men seeking sex with the interviewer, his wife or their son. “[Y]ou pick up the phone and the first thing they ask is how big is your … genitalia,” the interviewer testified. In response to other sexual ads, strange men came to the interviewer’s home in the wee hours of three consecutive mornings. The campaign of harassment and terror only stopped when Yung was ultimately arrested for “cybserstalking” in violation of federal law.

For the purposes of this case, the law made it a crime to “use a computer at least twice” “with the intent to harass or intimidate another person” in such a way that it either puts the target “in reasonable fear of … death … or serious bodily injury,” or in a way that is “reasonably expected to cause substantial emotional distress.” In essence, threats and harassment are speech crimes, and as speech crimes, they must be both narrowly drawn and narrowly applied—a range of First Amendment-protected activities that are annoying and vexatious but which are nonetheless protected speech. They could not be considered a crime simply because they were annoying.

On the other hand, what the U.S. Supreme Court called “true threats” can be criminalized within a sufficiently narrow statute. Yung challenged the federal cyberstalking case on the grounds that it was not sufficiently narrowly drafted and that it could be used to prosecute protected speech. This was what is called a “facial” challenge to the statute (meaning that it’s too broad and could restrict others’ protected speech, on its face) rather than an “as applied” challenge (my speech in this case was protected speech). The United States Court of Appeals for the Third Circuit recognized that the cyberstalking statute reached not only actions but speech in general, and the content of speech in particular, rejecting the government’s argument that the speech only reached “conduct” not speech. The court also noted that the statute prohibited speech that caused emotional distress. As the court noted:

The First Amendment protects lots of speech that is substantially emotionally distressing. Protesters may picket a marine’s funeral with signs like “Thank God for Dead Soldiers,” “God Hates Fags” and “You’re Going to Hell.” And a pornographer may parody a famous minister as having drunken sex with his mother. These statements are deeply offensive, yet still are covered by the First Amendment. But the federal appellate court found that the statute was “saved” by the fact that the requirement that the government prove that the defendant acted with “intent to harass or intimidate” could be read narrowly (saving the statute) or broadly (making the statute violative of the First Amendment). A broad interpretation would read “harass” as equivalent to “annoy” and would make it an offense to intentionally annoy someone (“Mom! Sister is touching me!”).

In fact, it’s the same constitutional problem with the federal law that makes it a crime to picket either at a court or the residence of a judge “with the intent of influencing any judge … in the discharge of his duty.” If you peacefully picket in front of the Supreme Court every year to “influence” the court to reverse Roe v. Wade, that’s protected speech. If you threaten a Supreme Court justice outside his or her home, that’s a violation of the statute. It partially depends on what “influence” means and, in the cyberstalking case, it depends on what “harass” means. By reading harass to mean to threaten or intimidate (a narrow reading) the court stated that the statute, on its face, can be saved.

What this means is that general harassment and annoyance may be protected speech (even if it causes emotional distress) but the kind of threats that Yung engaged in went well beyond the pale. This may impact other “speech”-related online offenses like cyberbullying, revenge porn, false impersonation and other online offenses. In the meantime, be careful if you are interviewing law students. You never know what might happen.

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Mark Rasch

Mark Rasch is a lawyer and computer security and privacy expert in Bethesda, Maryland. where he helps develop strategy and messaging for the Information Security team. Rasch’s career spans more than 35 years of corporate and government cybersecurity, computer privacy, regulatory compliance, computer forensics and incident response. He is trained as a lawyer and was the Chief Security Evangelist for Verizon Enterprise Solutions (VES). He is recognized author of numerous security- and privacy-related articles. Prior to joining Verizon, he taught courses in cybersecurity, law, policy and technology at various colleges and Universities including the University of Maryland, George Mason University, Georgetown University, and the American University School of law and was active with the American Bar Association’s Privacy and Cybersecurity Committees and the Computers, Freedom and Privacy Conference. Rasch had worked as cyberlaw editor for SecurityCurrent.com, as Chief Privacy Officer for SAIC, and as Director or Managing Director at various information security consulting companies, including CSC, FTI Consulting, Solutionary, Predictive Systems, and Global Integrity Corp. Earlier in his career, Rasch was with the U.S. Department of Justice where he led the department’s efforts to investigate and prosecute cyber and high-technology crime, starting the computer crime unit within the Criminal Division’s Fraud Section, efforts which eventually led to the creation of the Computer Crime and Intellectual Property Section of the Criminal Division. He was responsible for various high-profile computer crime prosecutions, including Kevin Mitnick, Kevin Poulsen and Robert Tappan Morris. Prior to joining Verizon, Mark was a frequent commentator in the media on issues related to information security, appearing on BBC, CBC, Fox News, CNN, NBC News, ABC News, the New York Times, the Wall Street Journal and many other outlets.

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