Swatting is “the action or practice of making a hoax call to the emergency services in an attempt to bring about the dispatch of a large number of armed police officers to a particular address.” Many kinds of online disputes end in swatting: causing a videogame participant to lose a game, being a legislator working on anti-cyber harassment legislation, or expressing political opinions. The results of a successful swatting are uniformly dangerous for the target, family or friends who live with the target, and the law enforcement officers themselves. While the obvious danger is that someone could end up being injured or killed in the confusion, the less obvious problem is that swatting can draw law enforcement resources away from real emergencies. Recently, some police departments have taken to accepting notices of online rivalries from active gamers so they know whether to be skeptical of emergency calls received. Even so, the response of law enforcement officers in the wake of a swatting incident is often to recommend the target stop gaming or going online—an unrealistic suggestion that minimizes the impact of this issue.
Earlier this year, Tyler Barriss, a Twitter user infamous for orchestrating the first deadly instance of “swatting,” was charged with involuntary manslaughter and extradited to Kansas for his role in the 2017 death of Andrew Finch. Barriss has now been charged with an additional 46 crimes in California for calling in bomb threats to a variety of organizations and running a paid swatting system through Twitter. Barriss maintains that the consequences of his calls to Wichita are not his fault, but rather merely unfortunate and the result of the rival gamer taunting him and providing him a fake address.
Legal issues posed by swatting include the fact that the act of swatting itself is not illegal. Of course, the results of swatting can be prosecuted if those results fit an existing state or federal statute, as was the case for Barriss, but the complexities of online harassment mean that many instances are left either legal or unable to be prosecuted. In the wake of Finch’s death, several bills have been introduced in the House to criminalize the act of swatting. These bills come on the heels of other legislative efforts over the past few years to accomplish the same objective.
The Online Safety Modernization Act (“OSMA”), sponsored by Rep. Clark (D-MA)—who suffered a swatting call nearly three years ago—has bipartisan support. The act would create a new section of the criminal code to cover swatting. OSMA links criminal liability to knowing transmission of “false or misleading information” that “would reasonably be expected to cause an emergency response,” a lower intent requirement than the other bills under consideration. Unlike the other bills in committee, OSMA allows for both criminal and civil liability for swatting, including reimbursement for all parties affected, recovery of attorneys’ fees, potential additional damages, and joint and several liability if there are multiple participants.
In contrast, the Anti-Swatting Act of 2018 (“ASA”) does not provide for civil liability for swatting, except as pertains to expense recovery. The ASA would amend the Communications Act of 1934 to enhance existing penalties for fraudulent caller identification. Specifically, the ASA operates through the existing prohibition of faking caller IDs, pursuing swatters by penalizing their frequent use of “spoofed” phone numbers when dialing 911 from outside their target’s geographic area. Violators may be subject to the existing $10,000 civil forfeiture penalty imposed under the current code in addition to the criminal fines and prison time provided for in the ASA. Though there is no criminal penalty enhancement for cases where swatting ends in death, and the allowance of imprisonment as punishment for spoofing caller IDs would be a marked enhancement to current penalties under this subsection of the code.
More limited in scope is the Andrew T. Finch Memorial Act of 2018 (“Memorial Act”), which amends an existing provision of the federal criminal code that prohibits threats and hoaxes to add a subparagraph addressing swatting. This statute is designed to criminalize false bomb threats that trigger the kind of heightened emergency response associated with swatting. The Memorial Act would limit civil recovery for swatting incidents to compensatory damages “incident to any emergency or investigate response.” However, the Memorial Act does include OSMA’s penalty enhancement for swatting that results in death and also makes any additional participants in swatting jointly and severally liable for expenses incurred.
Unfortunately, every one of these bills has languished in committee with little chance of seeing the floor, leaving the problem of swatting for subsequent Congressional sessions. Swatting has been a mainstay online life for years, and continues to spread and escalate. It is a dangerous form of harassment, and it should be specifically addressed as both a criminal act and a tort, because existing criminal statutes often leave victims of swatting and the communities they live in footing the bill for the actions of vindictive and malicious online actors.*
*Olivia Wheeling is an associate editor on the Michigan Technology Law Review.