48 The majority of governmental interest in games has been around the control of content, particularly sexual or violent content (Kovacs 2006; Kyle Orland, Wired, 17 January 2013). Much as with other media, governments have sought to impose a sense of moral order and the stamp of the contemporary political climate upon games, leading to the banning of games denounced as ‘murder simulators’ (see ‘Video game “sparked hammer murder”’, CNN World Edition, 29 July 2004; also Orr 2006, 44) and the support of games such as America’s Army, which attempts to offer an explicit and realistic presentation of modern warfare. Game developers and publishers contribute to this regulation, shaping games that match public preferences and then limiting player behaviour within games in order to accord with what are seen as prevailing sensibilities. Inevitably, then, these structures and limitations raise concerns of freedom of speech, both for players regulated by developers and publishers, and for developers and publishers regulated by governments

51 With that in mind, processes of player regulation become difficult to implement. How is it possible to fairly distinguish between something that is genuinely problematic, and something that is simply annoying, while retaining the notion that this is a game environment rather than a space for work?

56 Given our record to date, we seem to be poor at dealing with the online space in terms of regulation, and recent events suggest that we are far more successful at reducing the quality of the online experience for ordinary people than we are at dissuading and/or punishing criminal activity. Western governments have tended to pass legislation around the internet with little or no regard for the complexities of privacy and data collection, and lawmakers often seem unaware of the implications of the laws that they enact. A persistent problem with internet-related lawmaking is that we still don’t really know what people do, and arguments in support of legislation are often based on supposed and strained real-world analogies

Because of the failure of traditional bullying laws to define bullying behavior in a way to capture behavior like cyberbullying, the challenge inherent in all attempts to define “cyberbullying” is the necessity to choose either an overly broad definition with imprecise terms that offers a flexible one-time legislative fix with the risk that ambiguity will result in marginal cases of cyberbullying going unpunished; or a narrow, precise definition that excludes a great deal of potentially dangerous behavior and that would necessitate legislative updating to remain effective with the balancing gain of providing clearer guidance for enforcement. F

the true driving force behind anti-bullying and cyberbullying laws is the manner in which each legislature—or state regulatory body—defines key terms such as “bullying,” “harassment,” and “cyberbullying.” These definitions set forth the parameters according to which states act to prevent and combat bullying and cyberbullying and will determine the scope of prohibited conduct within that state. Thus, if harassment is too narrowly defined, certain harmful conduct may escape enforcement altogether. Moreover, this is where cyberbullying is truly implicated because in order to bring online bullying within the enforcement powers of school administration or law enforcement (where previously it may have been unconsidered), it must be included in the definition of proscribed conduct.

Currently, approximately 10 states criminalize bullying, including Arkansas, Idaho, Kentucky, Louisiana, and Massachusetts (Stopbullying.gov, 2014). The Massachusetts anti-bullying law provides in part that “whoever willfully engages in a pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal bullying” (Stopbullying.gov, 2014). Researchers acknowledge that criminalization of bullying has advantages and drawbacks, but it seems clear that under certain circumstances, it strengthens state enforcement

It is important to note at the outset that anti-bullying laws gained traction prior to the near-universal Internet usage that exists today. As such, many state anti-bullying laws did not originally include protections against cyberbullying; thus, cyberbullying protections in many states are simply overlaid on existing anti-bullying legislation. Because of this, it is important when classifying state cyberbullying controls to simultaneously discuss the various types of antibullying laws that exist throughout the United States

There are potentially a number of laws that could be at issue depending on the nature of the bullying, one such being whether the bullying qualifies as harassment. Harassment refers to the bullying of attributes that are legally protected. So Title VI of the Civil Rights Act (1964) prohibits harassment based on race, color, national origin; Title IX of the Education Amendments (1972) prohibits harassment based on sex; and Section 504 of the Rehabilitation Act (1973) and Title II of the Americans with Disabilities Act (1990) prohibits disability-based harassment. Additionally, the Office of Civil Rights and the Office of Special Education and Rehabilitative Services have issued a series of Dear Colleague Letters (2000, 2010, 2013, 2014) addressing these civil rights violations

Legislation imposing criminal sanctions for cyberbullying has met criticism that it would lead to overcriminalization, jeopardize First Amendment freedoms, and rely too heavily on prosecutorial discretion. However, the government interest in protecting children from the dangers of cyberbullying would be more realistically served by legislation that increases education and awareness of the risks associated with the Internet among children and parents. Unlike criminal statutes, educational programming is easily adaptable, and thus is more capable of adjusting to and incorporating changing technology and any associated dangers. Also, the risk of extending too broadly in an educational plan is much lower than enforcing an overbroad criminal law. Educational efforts do not include the likely negative consequences of imposing criminal anticyberbullying sanctions. On the contrary, the benefits of education on cyberbullying and related issues seem clear. Rather than focusing on where to draw lines in criminalizing behavior of this kind, legislators need to focus on increasing awareness of cyberbullying dangers in order to best prepare children to avoid and deal with cyberbullying and its related technological hazards.

As introduced earlier, the jurisdictional limitations of state laws make them a weak solution to the problem of cyberbullying. Cyberbullying is not limited to certain states or regions, just as Internet users are not limited by state lines. Federal legislation is more likely to positively affect and combat cyberbullying. However, for the reasons highlighted above, criminalization is not the answer as its likely negative consequences outweigh the possible positive effects. Contrary to criminalization, increased Internet safety education efforts address cyberbullying in a manner that has proven effective and unlikely to include the negative consequences, such as imposing punitive sanctions too broadly. Empowering educators with the tools to inform students and parents about how to use ever-changing technology wisely is key. Providing information that increases awareness of the risks that lurk online and teaching students to avoid common mistakes--for example, posting too much personal information or not informing a teacher or parent when they come across something dangerous--will better prepare them to utilize the positive aspects of the Internet without becoming victims of the dangers.

Finally, some legislation mandating schools to create bullying policies requires school districts to provide parents with information about cyberbullying and suggestions for decreasing their children’s risk of becoming a cyberbullying victim.227 Legislators should force school districts to create policies that would require parents to receive copies of the school’s cyberbullying policy along with information about how to prevent their child from being cyberbullied and, if their child is being cyberbullied, how to address the problem. Although increasing parental awareness of cyberbullying is likely to have some demonstrable effect on cyberbullying, there are limitations to this policy alternative. First, some parents may be reluctant to limit their child’s exposure to the Internet or cell phones, claiming that such limitations could decrease their child’s privacy and autonomy. Second, even though parents are able to monitor their children’s activities while under their supervision, parents are not always able to monitor their children when their children are away from home. Nonetheless, any level of parental involvement and awareness is likely to be better than none.

Children engage in cyberbullying partly because they are able to do so without fear of parents, teachers, or other adults “catching” them in the act.222 Unlike traditional bullying, cyberbullies are able to harass by using anonymous screen names, secretly posting photos and comments online, and sending text messages.223 Parents need to discuss the use of technology with their children and determine for themselves whether access to the Internet, cell phones, and other electronic communication devices is necessary for their children. To become better informed of their children’s activities, parents also need to familiarize themselves with the Internet, including social-networking sites and IM “lingo.”

State legislation requiring school districts to adopt bullying and cyberbullying policies rests on the premise that students will notify parents, teachers, or school staff and administrators when they are being cyberbullied. However, children are unlikely to tell parents and teachers when they are being cyberbullied because of fear of retaliation from the bully and other students, and the potential loss of Internet privileges.

Given the disparity in the lower courts’ treatment of offcampus cyberspeech, cyberbullying legislation should only allow school administrators to punish cyberbullying occurring on-campus. The only exception should be if off-campus speech constitutes a threat of violence to students, teachers, or staff by a reasonable objective person.21

Anonymity is one of the major characteristics of online environments (Johnson 1997). Being anonymous online gives individuals’ opportunities to behave in socially undesirable or even harmful ways without being sanctioned (Kiesler et al. 1984, Sproull and Kiesler 1986), as in the cases of online flaming (insulting, swearing, or using offensive language on the Internet) and game cheating.

This research studied some internal and external motivators for cyberbullying.