Friday, July 21, 2017

Grand Theft, “Unlawful Use of a Computer System” and the Eighth Amendment

This post examines a recent opinion from the Supreme Court of South Dakota: State v. Krause, 894 N.W.2d 382 (2017). The court begins the opinion by explaining that
[t]win brothers Ryan Alan Krause and Brian Michael Krause appeal the circuit court's imposition of four consecutive, two-year sentences on each brother for multiple convictions of unlawfully using a computer system. The Krauses first argue their sentences violate the Eighth Amendment's prohibition against cruel and unusual punishment. 
State v. Krause, supra.
The Supreme Court goes on to explain how, and why, the prosecution arose:
In 2014, the Krauses were both employed in information-technology positions in Milbank. Brian worked for Valley Queen Cheese, and Ryan worked for Big Stone Therapies. Valley Queen Cheese had contracted with the Xerox Company to supply toner cartridges. Under the agreement, Xerox maintained ownership of a cartridge even while it was in Valley Queen Cheese's possession. In order to protect its property interest in leased cartridges, Xerox maintains a security division that monitors the internet for the sale of such consumables.

In January 2014, Xerox's security division discovered some of its toner cartridges posted for sale on the internet. The cartridges had been assigned to Valley Queen Cheese and were offered for sale by someone using the email address Brian.Krause1@html.com. Xerox purchased the cartridges and made similar purchases from the same seller in April 2014. Afterward, the seller offered to sell Xerox additional property worth $5,800 for the price of only $600. After this exchange, Xerox notified the Milbank Police Department.

The subsequent investigation uncovered a scheme in which the Krauses stole equipment from both Valley Queen Cheese and Big Stone Therapies and sold it on the internet. An internal investigation conducted by Valley Queen Cheese revealed that approximately $180,000 in equipment had been stolen by the Krauses. The stolen equipment included: toner, toner cartridges, computers, computer monitors, printers, phones, electronic equipment, and other miscellaneous items of inventory. The Krauses had also taken additional electronics from Big Stone Therapies.

In addition to stealing company property, the Krauses also accessed sensitive and private information. On December 27, 2013, the Krauses accessed the restricted database of Valley Queen Cheese's accounting department and copied the 2013 payroll statement, which included the ID numbers, salaries, benefits, accrued leave, bonus payments, mailing addresses, and bank-account numbers of its employees. On July 1, 2014, Brian accessed the email account of the chief financial officer (CFO) and copied an email containing a local businessman's development-loan application, which included the businessman's taxpayer ID number, social security number, underwriting documents, personal financial statement, and business financial statement. On July 23, 2013, Brian accessed the CFO's personal files and copied the personal financial statements of the CFO and the chief executive officer. On May 31, 2013, and February 12, 2014, Brian accessed the CFO's and IT administrator's email accounts and used their information to access the CFO's and administrator's online banking records. In each of the foregoing instances, Brian shared and discussed the information he accessed with Ryan.
State v. Krause, supra.
The Supreme Court goes on to explain how, and why, the Krause brothers came to be charged:
On July 10, 2015, the Krauses entered into identical plea agreements with the State. The Krauses agreed to pay restitution to Valley Queen Cheese and Big Stone Therapies in the amount of $80,000 and to sign over the title to a jointly owned pontoon boat. In exchange, the State agreed to limit charges to one count each of grand theft for the property taken and four counts each of unlawfully using a computer system. The State also agreed to recommend that the sentences for unlawfully using a computer system run concurrent with the sentence for grand theft. Pursuant to these agreements, the State filed separate complaints against the Krauses on July 14. Each complaint alleged one count of grand theft under [SouthDakota Codified Laws] 22–30A–1 and four counts of unlawfully using a computer under [South Dakota Codified Laws] 43–43B–1(2).

The Krauses entered guilty pleas to all charges on July 20, 2015, and the circuit court sentenced them on September 15, 2015. Focusing on punishment and deterrence, the circuit court sentenced each of the Krauses to four years imprisonment for grand theft. The court also sentenced the Krauses to two years imprisonment for each count of unlawfully using a computer system. Additionally, the court ordered all sentences run consecutively.
State v. Krause, supra.
The Supreme Court went on to explain that in their “consolidated appeal”, which I assume means their individual appeals were consolidated, probably for the interests of maintaining consistency in the legal analysis applied to both appeals, the defendants raised two issues: 
1. Whether their consecutive sentences for unlawfully using a computer system violate the Eighth Amendment's prohibition against cruel and unusual punishment.

2. Whether the circuit court erred by imposing sentences of imprisonment instead of probation for the unlawful-use-of-computer-system convictions.
State v. Krause, supra. In a footnote appended to the last word in the description of the first issue, the Supreme Court noted that the brothers did not appeal their convictions for grand theft. State v. Krause, supra.
The Supreme Court therefore began its analysis of the brothers’ arguments concerning their sentencing. State v. Krause, supra.  It analyzed the arguments in the order in which they are given above.
The Court therefore began its analysis of the Krauses’ first issue by explaining that
`[w]e generally review a circuit court's decision regarding sentencing for abuse of discretion.’ State v. Rice, 2016 S.D. 18, ¶ 11, 877 N.W.2d 75, 79 (quoting State v. Chipps, 2016 S.D. 8, ¶ 31, 874 N.W.2d 475, 486). `However, when the question presented is whether a challenged sentence is cruel and unusual in violation of the Eighth Amendment, we conduct a de novo review to determine whether the sentence imposed is grossly disproportionate to the offense.’ Id. (quoting Chipps, 2016 S.D. 8, ¶ 31, 874 N.W.2d at 486).

The Krauses argue that their sentences for unlawfully using a computer are grossly disproportionate to the circumstances of their crimes. They contend that the circumstances of their crimes were minor. They also contend their crimes are mitigated because: (1) neither of the Krauses has a substantial criminal record, (2) they cooperated with law enforcement in interviews and by surrendering computer evidence, (3) they immediately enrolled in counseling, and (4) they made restitution prior to sentencing. However, the Krauses' mitigation arguments are entirely irrelevant to an Eighth Amendment analysis. The Supreme Court has rejected individualized sentencing in noncapital casesHarmelin v. Michigan, 501 U.S. 957, 995 (1991); accord Rice, 2016 S.D. 18, ¶ 18 & n.3, 877 N.W.2d at 81–82 & n.3. Therefore, we simply determine whether the sentences imposed appear grossly disproportionate to the offenses committed.

To determine whether a sentence is grossly disproportionate to an offense, we first compare `the gravity of the offense and the harshness of the penalty.’ Chipps, 2016 S.D. 8, ¶ 38, 874 N.W.2d at 488 (quoting Solem v. Helm, 463 U.S. 277, 290–91, 103 S.Ct. 3001, 3010, 77 L.Ed.2d 637 (1983)). `This comparison rarely `leads to an inference of gross disproportionality’ and typically marks the end of our review.’ Id.¶ 38, 874 N.W.2d at 489 (quoting State v. Garreau, 2015 S.D. 36, ¶ 9, 864 N.W.2d 771, 775). `If the penalty imposed appears to be grossly disproportionate to the gravity of the offense, then we will compare the sentence to those “imposed on other criminals in the same jurisdiction” as well as those ‘imposed for commission of the same crime in other jurisdictions.’ Id. (quoting Solem v. Helm, 463 U.S. at 291, 103 S.Ct. at 3010).
State v. Krause, supra.
The court goes on to explain that the Krauses pleaded guilty to
unlawfully using a computer system. Among other instances, this offense occurs when a person `[k]nowingly obtains the use of, accesses, or exceeds authorized access to, a computer system, or any part thereof, without the consent of the owner, and the access or use includes access to confidential data or material[.]’ [South Dakota Codified Laws] 43–43B–1(2).This particular variation of the offense violates both property and privacy rights of the victim. As noted above, supra ¶ 5, the Krauses accessed and discussed payroll data, bank accounts, personal financial statements, email, and other confidential data belonging to a number of people. The Krauses argue that because they did not further disseminate the confidential information they accessed or use it to extort their victims, their crimes are not representative of the most serious of their kind.

Yet, the offense for which the Krauses were convicted addresses only obtaining the use ofaccessing, or exceeding authorized access to a computer system, without the consent of the owner, to access confidential data or material. Id. The fact that the Krauses could have committed additional crimes but did not do so does not diminish the gravity of the crimes that occurred. Regardless, these crimes already lie on the lower end of the gravity-of-offense spectrum. A two-year sentence correspondingly lies on the low end of the spectrum of punishments. Therefore, considering the property and privacy interests that the Krauses violated, their sentences do not appear grossly disproportionate to their offenses, and our review ends. See Chipps, 2016 S.D. 8, ¶¶ 43–45, 874 N.W.2d at 490–91 (upholding five-year sentence of imprisonment for four occurrences of identity theft).
State v. Krause, supra. (emphases in the original).
The Court went on to address the other issue raised in the defendants’ appeal, explaining that
[n]ext, the Krauses argue the circuit court erred by deviating from a presumptive sentence of probation. At the time they were sentenced, [South Dakota Codified Laws] 22-6-11 generally required a sentencing court to impose a sentence of probation for the commission of a Class 5 or 6 felony. State v. Orr, 2015 S.D. 89, ¶ 9, 871 N.W.2d 834, 837. Deviation from a presumptive sentence of probation is permitted only if the sentencing court finds aggravating circumstances posing a significant risk to the public that requires such a departure. Id. 

The Krauses contend the circuit court's focus on punishment and deterring future offenders does not establish a significant risk to the public sufficient to deviate from the presumptive sentence of probation. They additionally contend that even if aggravating circumstances were present, the circuit court erred by not stating those circumstances in the judgment of conviction.  The State responds that because the circuit court imposed a sentence of imprisonment on the Krauses for grand theft, [South Dakota Codified Laws] 22-6-11 does not apply to the remaining offenses.
State v. Krause, supra.
The Supreme Court continued its analysis, explaining that
[w]e recently reviewed the constitutionality of [South Dakota Codified Laws] 22-6-11 in State v. Orr. In that case, a defendant already sentenced to imprisonment in the penitentiary received additional sentences for consecutive penitentiary time and a concurrent term of probationOrr, 2015 S.D. 89, ¶ 2, 871 N.W.2d at 835. The defendant appealed, arguing he could not be subjected to simultaneous supervision by the executive and judicial branches. Id. We agreed and held: `The judicial branch cannot give itself authority over offenders that are in the state penitentiary by sentencing a person to simultaneous probation and penitentiary sentences.’ Id. ¶ 10, 871 N.W.2d at 838. Consequently, a `sentencing court cannot grant probation where a defendant receives penitentiary time beyond that authorized by [South Dakota Codified Laws] 22-6-11  23A–27–18.1 and [South Dakota Codified Laws] 23A–27–18.2.’ Id. ¶ 12, 871 N.W.2d at 838.

The Krauses did not respond to the State's argument and have not offered any analysis on whether Orr applies to the present case. We note that Orr involved concurrent sentences of imprisonment and probation, whereas the current case involves consecutive sentences. Therefore, this case does not involve the same dual-supervision problem presented in Orr. Even so, other statutes also suggest that once the executive branch assumes supervision of an offender, he does not return to the judicial branch for supervised release. By statute, a sentencing court does not have discretion to impose a sentence of probation consecutive to a term of imprisonment. See [South Dakota Codified Laws §] 22–6–6.1. And while a court can supervise an offender `with an entirely suspended penitentiary sentence’ in some cases, it may not do so if `the entirely suspended penitentiary sentence is concurrent or consecutive to an additional penitentiary sentence[.]’ [South Dakota Codified Laws §] 23A-27-18.4 . In such a case, the offender remains under the supervision of the executive branch. Id.
State v. Krause, supra.
The court then takes up a related issue, explaining that in
light of the foregoing, it appears the circuit court did not have the authority—let alone an obligation—to sentence the Krauses to probation for their unlawful-use-of-computer-system convictions. As the State correctly points out, the Krauses were each sentenced to a four-year term of imprisonment in the penitentiary for their grand-theft convictions. The Krauses have not appealed these sentences. Thus, because the Krauses were otherwise committed to the supervision of the executive branch, subsequent supervision by the judicial branch was not an option, and probation was no longer the presumptive sentence under [South Dakota Codified Laws §] 22–6–11. Because probation was not the presumptive sentence, the circuit court's decision to impose a penitentiary sentence was necessarily not a deviation from under [South Dakota Codified Laws §] 22–6–11, and the circuit court was not required to state aggravating circumstances in the judgment of conviction.
State v. Krause, supra.
The Supreme Court then articulated its holding in the case:
The sentences the Krauses received for unlawfully using a computer system do not appear grossly disproportionate to the gravity of their offenses; therefore, the sentences are not cruel and unusual. Because the Krauses were sentenced to imprisonment in the penitentiary, the circuit court was not required or authorized to sentence the Krauses to probation for their unlawful uses of a computer system. Therefore, the circuit court did not err by imposing two-year sentences of imprisonment for each such conviction.
We affirm.
State v. Krause, supra.


Wednesday, July 19, 2017

“Engaging in a Child Exploitation Enterprise,” the Laptop and Forfeiture

“Engaging in a Child Exploitation Enterprise,” the Laptop and Forfeiture

This post examines a recent opinion from the U.S. District Court for the Western Division of North Carolina: U.S. v. Chase, 2017 WL 1966747 (2017). The U.S. District Court Judge who has the case begins the opinion by explaining that
THIS MATTER is before the Court on the United States of America's Motion for Preliminary Order of Forfeiture. The United States requests, pursuant to 18 U.S. Code § 2253(a)(3)Fed.R. Crim. P. 32.2(b), and the Special Verdict (Doc. 99) on forfeiture, that this Court order forfeiture of the following properties that the United States contends constitute properties used or intended to be used to commit or promote the commission of the Count One 18 U.S. Code § 2251A(g) offense of engaging in a child exploitation enterprise and the Count Three 18 U.S. Code § 2251(d) offense of advertising child pornography:

• One ASUS laptop, serial number E1N0CV090739012 (hereafter, “ASUS Laptop”);
• One Cruzer 128GB thumbdrive (hereafter, `Cruzer Thumbdrive’); and
• The real property at 3570 15th Avenue, SW, Naples, Florida, identified in a deed to Steve Chase and Barbara Chase, husband and wife, recorded at Book 2337, Page 0771 of the Collier County Clerk of the Circuit Court, also known as Parcel 37988440001, and more particularly described as follows:

THE EAST 105' OF THE EAST 180' OF TRACT 90, UNIT 27, GOLDEN GATE ESTATES, ACCORDING TO A PLAT THEREOF RECORDED IN PLAT BOOK 7, PAGES 17 AND 18, OF THE PUBLIC RECORDS OF COLLIER COUNTY, FLORIDA.
(hereafter, `Naples Residence’).
U.S. v. Chase, supra. If you would like to learn more about criminal forfeiture in federal criminal cases, check out this article.
The opinion goes on to explain how, and why, the prosecution arose:
On August 19, 2015, a Grand Jury in the Western District of North Carolina returned a Second Superseding Indictment (Doc. 31; hereafter, `Indictment’) against Defendant and others, charging Defendant with, inter alia, engaging in a child exploitation enterprise as set forth in Count One; a conspiracy to advertise child pornography as set forth in Count Two; advertising child pornography as set forth in Count Three; transporting child pornography as set forth in Count Four; transporting child pornography as set forth in Count Five; transporting child pornography as set forth in Count Six; and possessing child pornography as set forth in Count Seven.

The charges were based on Defendant's role as administrator of a worldwide child pornography website known as `Playpen’ on the TOR network on the so-called `dark-web.’ The Government contends that Playpen facilitated the worldwide sharing of in excess of approximately 100,000 in images among in excess of 150,000 Playpen users.

The Indictment also contained a `Notice of Forfeiture and Finding of Probable Cause’ whereby the Grand Jury found probable cause that the Naples Residence was subject to forfeiture. Defendant resided at the Naples Residence during the course of the offenses. Further, the Naples Residence was titled to Defendant and his deceased spouse.
U.S. v. Chase, supra.
The opinion then explains that Chase
pled not guilty and elected a jury trial. Ahead of trial, the Government filed a Notice of Proposed Jury Instructions and Verdict Sheet (Doc. 88) and a Trial Brief (Doc. 90), informing Defendant and the Court that the Government intended to pursue forfeiture of, not only the Naples Residence, but also the ASUS Laptop and Cruzer Thumbdrive, all such forfeitures based on the allegation that Defendant used these items to promote his Count One, Count Two, and Count Three offenses. Defendant elected (Doc. 89) to retain the Jury to decide forfeiture.
U.S. v. Chase, supra.
The District Court Judge went on to explain that
[d]uring the criminal trial, the Government introduced and the Court admitted evidence that established, among other facts, the following:

• On multiple occasions, from the Naples Residence, Defendant logged-in to an email account that he used to register Playpen;

• On at least one occasion, from the Naples Residence, Defendant accessed a PayPal account that he used to fund Playpen;

• On multiple occasions, from the Naples Residence, Defendant logged in to Playpen; and

• At execution of a Search Warrant by law enforcement at the Naples Residence, Defendant fought entry by law enforcement and, once law enforcement entered, law enforcement discovered the ASUS Laptop on, logged-in to the server hosting Playpen with Defendant logged-in as Playpen administrator, with the Cruzer Thumbrive inserted into the ASUS Laptop. Further, law enforcement discovered on the ASUS Laptop a browser history that reflected a history of access to the administrative forum of Playpen. Law enforcement also discovered passwords and administrative instructions for Playpen on the Cruzer Thumbdrive.
U.S. v. Chase, supra.
The opinion goes on to explain that
[b]ased on, among other evidence, the above-referenced evidence, the Jury found (Doc. 98) Defendant guilty on all counts except for Count Two, on which the Jury was instructed not to return a verdict should the Jury find Defendant guilty on Count One. As to the Count One offense, the Jury found that predicate offenses included advertising child pornography from 2014 through 2015; transporting child pornography on February 1, 2015; transporting child pornography on October 12, 2014; transporting child pornography on September 26, 2014; and possession of child pornography on August 19, 2014 and February 17, 2015. Simply put, the Jury found Defendant guilty of numerous egregious crimes, wide-spread in their duration and impact.

Further, following brief argument by the Government and Defendant, the Jury also returned a Special Verdict (Doc. 99) for forfeiture of the Naples Residence, ASUS Laptop, and Cruzer Thumbdrive. The Special Verdict constituted a finding by the Jury that there was a nexus between Counts One and Three, and the properties. The Government now requests that this Court issue a Preliminary Order of Forfeiture for these same items.
U.S. v. Chase, supra.
The District Court Judge then goes on to outline the “legal conclusions” that he has decided apply to the facts in this case. U.S. v. Chase, supra. He begins by explaining that
Title 18 U.S. Code §2253(a)(3) and Federal Rules of Criminal Procedure Rule 32.2(b)(1)  provide for preliminary forfeiture of property used or intended to be used to commit or promote violation of the child exploitation enterprise statute as charged in Count One and a violation of the advertising child pornography statute as charged in Count Three. Forfeiture is appropriate upon a court finding of a nexus, or connection, between the property and the violations. Fed. R. Crim. P. 32.2(b)(1)(A). The finding may be based on evidence already in the record and any additional evidence or information submitted by the parties and accepted by the court as relevant and reliable. Fed. R. Crim. P. 32.2(b)(1)(B). The burden of proof on forfeiture is preponderance of the evidenceSee, e.g., United States v. Cherry, 330 F.3d 658, 669 (U.S. Court of Appeals for the 4th Circuit 2003). Here, the preponderance standard is easily satisfied.

Specifically, at the trial of this matter, the Government introduced evidence, detailed above, that, on numerous occasions, Defendant accessed an email account from the privacy of the Naples Residence so that he could operate Playpen; that Defendant accessed a PayPal account from the privacy of the Naples Residence so that he could operate Playpen; that, on numerous occasions, Defendant accessed the Playpen server from the privacy of the Naples Residence; and that Defendant was operating Playpen via the ASUS Laptop and Cruzer Thumbrive, in the privacy of the Naples Residence, when law enforcement executed the Search Warrant. Further, the Jury returned a Special Verdict of forfeiture based on this evidence.
U.S. v. Chase, supra.
The judge concludes his opinion by explaining that the
Government submits that such evidence, along with the Verdict and Special Verdict, are more than sufficient to establish by a preponderance of the evidence that the assets were used or intended to be used to commit or promote the commission of the Count One and Count Three offenses. 18 U.S. Code § 2253(a)(3); see also United States v. Ownby, 926 F.Supp. 558, 566 (U.S. District Court for the Western District of Virginia 1996 (Overruling defendant's objection that forfeiture of residence in which he used computer to possess, receive, and transport child pornography was excessive; reasoning that `it is clear that the privacy afforded by the dwelling was essential to Ownby's commission of the charged offenses.’), aff'd, 131 F.3d 138 (4th Circuit Court of Appeals 1997) (Table); United States v. Wilk, 2007 WL 2263942, at *1 (S.D. Fl. Aug. 6, 2007) (same in case of forfeiture of residence when in excess of 90 images were on computer in home); cf. United States v. 7046 Park Vista Road, 537 F.Supp.2d 929, 940–41 (S.D. Ohio 2008)(determining, on Government's summary judgment motion in civil forfeiture case, that residence in which Section 2251 and 2251 and 2252 occurred was forfeitable). The Court agrees.

It is, therefore ORDERED:

1. Based upon Defendant's convictions, the trial evidence, the Verdict, and the Special Verdict, the United States is authorized to take and maintain possession of the following property belonging to Defendant, and the property is hereby forfeited to the United States for disposition according to law, provided, however, that such forfeiture is subject to any and all third party claims and interests, pending final adjudication herein:

• One ASUS laptop, serial number E1N0CV090739012;

• One Cruzer 128GB thumbdrive; and

• The real property at 3570 15th Avenue, SW, Naples, Florida, identified in a deed to Steve Chase and Barbara Chase, husband and wife, recorded at Book 2337, Page 0771 of the Collier County Clerk of the Circuit Court, also known as Parcel 37988440001, and more particularly described as follows:

THE EAST 105' OF THE EAST 180' OF TRACT 90, UNIT 27, GOLDEN GATE ESTATES, ACCORDING TO A PLAT THEREOF RECORDED IN PLAT BOOK 7, PAGES 17 AND 18, OF THE PUBLIC RECORDS OF COLLIER COUNTY, FLORIDA.

2. Pursuant to 21 U.S. Code §853(n)(1), the Government shall publish notice of this order; notice of its intent to dispose of the property in such manner as the Attorney General may direct; and notice that any person, other than the Defendant, having or claiming a legal interest in any of the above-listed forfeited property must file a petition with the Court within thirty days of the final publication of notice or of receipt of actual notice, whichever is earlier. This notice shall state that the petition shall be for a hearing to adjudicate the validity of the petitioner's alleged interest in the property, shall be signed by the petitioner under penalty of perjury, and shall set forth the nature and extent of the petitioner's right, title or interest in the forfeited property and any additional facts supporting the petitioner's claim and the relief sought. The United States may also, to the extent practicable, provide direct written notice to any person known to have alleged an interest in property that is the subject of this Order of Forfeiture, as a substitute for published notice as to those persons so notified.

3. Upon adjudication of all third-party interests, this Court will enter a Final Order of Forfeiture.

SO ORDERED.
U.S. v. Chase, supra. 

Monday, July 17, 2017

The 2200 Emails, the Injunction and Cyberstalking

This post examines a recent decision the District Court of Appeal of Florida – Second District issued in a civil case: Scott v. Blum, 191 So.3d 502 (2017). The court begins the opinion by explaining that
Randy Scott challenges the order enjoining him from cyberstalking. He contends that the petitioner below, Frederic A. Blum, failed to provide evidence of the statutory elements required for entry of an injunction against cyberstalking. Mr. Scott also contends that the order is overly broad and impedes his First Amendment right to free speech. We agree that Mr. Blum failed to meet his evidentiary burden and reverse. As a result, we do not reach the First Amendment issue.
Scott v. Blum, supra.
The Court of Appeals goes on to explain how, and why, the case arose:
Mr. Blum filed a petition for injunction for protection against cyberstalking. Mr. Blum is a process server and a member of the National Association of Professional Process Servers (NAPPS). Mr. Scott is a former process server and former member of NAPPS. At the hearing on the petition, Mr. Blum testified that Mr. Scott sent emails about Mr. Blum and Mr. Blum's family, partners, and former employees to 2200 NAPPS members. The emails consisted of links to articles, blog posts, or videos. In some instances, the articles or blog posts were written by Mr. Scott.

 The tenor of the emails, articles, blog posts, and videos was derogatory, and the allegations within them were potentially damaging to Mr. Blum's business and reputation. Copies of the emails supported Mr. Blum's testimony.

Mr. Blum testified that none of the emails were sent directly to him but that he knows about them because they were forwarded by the recipients to him or he received phone calls about them. The emails, articles, blog posts, and videos did not contain threats against Mr. Blum. 

However, Mr. Blum claimed that the content of the emails, articles, blog posts, and videos caused him emotional distress; he had trouble sleeping and eating, the emails were constantly on his mind, and he constantly had to defend himself to people.

Mr. Scott testified that his emails discussed many people within NAPPS or connected to NAPPS and were not directed at Mr. Blum.

The trial court granted the injunction without findings or conclusions. The order is a form order with no conditions specific to the facts of this case.
Scott v. Blum, supra.
The Court of Appeals goes on to explain that
Section 784.0485(1), Florida Statutes (2014), provides that `[f]or the purposes of injunctions for protection against stalking under this section, the offense of stalking shall include the offense of cyberstalking.’ Section 784.0485(1)(d) defines cyberstalking as `engag[ing] in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.’ Harassment is `a course of conduct directed at a specific person which causes substantial emotional distress . . . and serves no legitimate purpose.’ §784.048(1)(a).

Thus, cyberstalking is harassment via electronic communications. See Murphy v. Reynolds, 55 So.3d 716, 717 (Fla. 1st District Court of Appeals 2011). In order to succeed in a petition for injunction against cyberstalking, the petitioner must establish that a series of electronic communications directed at the petitioner caused substantial emotional distress and served no legitimate purpose. `Whether a communication causes substantial emotional distress should be narrowly construed and is governed by the reasonable person standard.’ David v. Textor, 189 So.3d 871, 875 (Fla. 4th District Court of Appeals 2016); accord Leach v. Kersey, 162 So.3d 1104, 1106 (Fla. 2d District Court of Appeals 2015) (`In determining whether substantial emotional distress occurred, the courts look to the standard of a reasonable person in the petitioner's shoes’).
Scott v. Blum, supra.
The opinion goes on to explain that
`[w]here comments are made on an electronic medium to be read by others, they cannot be said to be directed to a particular person.’ David, 189 So.3d at 875 (citing Chevaldina v. R.K./FL Mgmt., Inc., 133 So.3d 1086, 1091–92 (Fla. 3rd District Court of Appeals 2014)).

In Horowitz v. Horowitz, 160 So.3d 530, 531 (Fla. 2d District Court of Appeals 2015), this court stated:

`Mr. Horowitz's Facebook posts do not meet the statutory definition of cyberstalking for two reasons. First, the posts were not `directed at a specific person.’ § 784.048(1)(d). The testimony showed that Mr. Horowitz posted the information to his own Facebook page. Screenshots of the posts admitted into evidence confirm that they were posted to Mr. Horowitz's page and that Mrs. Horowitz was not `tagged’ or mentioned, nor were the posts directed to her in any obvious way.'

`Likewise, the emails here do not meet the statutory definition of cyberstalking. The emails were not `addressed’ to Mr. Blum, and nothing indicates that Mr. Blum was an intended recipient. Cf. Branson v. Rodriguez–Linares, 143 So.3d 1070, 1071 (Fla. 2d District Court of Appeals 2014) (concluding that sending more than 300 emails to the petitioner constituted evidence of stalking); Bacchus v. Bacchus, 108 So.3d 712, 715 (Fla. 3rd District Court of Appeal 2013) (`Even harassment of the wife through third parties would be insufficient to warrant the imposition or extension of an injunction.’)'.
Scott v. Blum, supra.
The Court of Appeal went on to explain that
Mr. Scott did not communicate words, images, or language via email or electronic communication directly to Mr. Blum. Cf. Thoma v. O'Neal, 180 So.3d 1157, 1160 (Fla. 4th District Court of Appeals 2015) (`We . . . agree with the trial court that sending the flyer to the Victim's home was an incident of harassing behavior.’). The videos do not constitute evidence of the communication of `words, images, or language . . . directed at a specific person, causing substantial emotional distress to that person. See Chevaldina, 133 So.3d at 1091–92 (quoting § 784.048(1)(d)). The emails sent to 2200 NAPPS members do not constitute words `directed at a specific person' for purposes of the cyberstalking statute simply because they are about Mr. Blum. See David, 189 So.3d at 875. Nor did Mr. Scott “cause to be communicated” words, images, or language via email or electronic communication to Mr. Blum.

Further, `[t]hat [the articles and videos] may be embarrassing to [Mr. Blum] is not at all the same as causing him substantial emotional distress sufficient to obtain an injunction.’ See id. The same is true for the emails sent to the NAPPS members. Mr. Scott did not make any threats to Mr. Blum's safety. See id. Mr. Blum's distress relates to his business reputation and personal reputation among his colleagues.

 A reasonable person would not suffer substantial emotional distress over the emails, articles, blog posts, and videos at issue. That the articles written by Mr. Scott contain false allegations or embarrassing information is not a basis for a cyberstalking injunction.
Scott v. Blum, supra.
The Court of Appeal went on to conclude the opinion with these comments:
`Angry social media postings are now common. Jilted lovers, jilted tenants, and attention-seeking bloggers spew their anger into fiber-optic cables and cyberspace. But analytically, and legally, these rants are essentially the electronic successors of the pre-blog, solo complainant holding a poster on a public sidewalk in front of an auto dealer that proclaimed, `DON'T BUY HERE! ONLY LEMONS FROM THESE CROOKS!’ Existing and prospective customers of the auto dealership considering such a poster made up their minds based on their own experience and research. If and when a hypothetical complainant with the poster walked into the showroom and harangued individual customers, or threatened violence, however, the previously-protected opinion crossed the border into the land of trespass, business interference, and amenability to tailored injunctive relief. The same well-developed body of law allows the complaining blogger to complain, with liability for money damages for defamation if the complaints are untruthful and satisfy the elements of that cause of action. Injunctive relief to prohibit such complaints is another matter altogether.'

Chevaldina, 133 So.3d at 1092 (addressing an order enjoining tortious interference, stalking, trespass, and defamatory blogs).

Reversed.
Scott v. Blum, supra.