Legislative Response on Sextortion

By Benjamin Wittes
Tuesday, May 17, 2016, 2:59 PM

In the week since the release of our sextortion reports, there have been a number of encouraging signs of legislative interest in the problem. The day Brookings released the reports, Rep. Katherine Clark of Massachusetts announced that "I find the prevalence of this heinous practice alarming. Our laws need to keep pace with threats to our children, and I will be filing legislation to address this crime." There is interest in possible legislation from both sides of the aisle and from both houses. More on that as it develops.

Today, however, Sen. Barbara Boxer of California wrote a letter to Attorney General Loretta Lynch raising another important issue on which we focused in the report: the absence of federal data about the prevalence of sextortion or sextortion prosecutions. The letter reads in relevant part: "court records show that some of these cyber-criminals have blackmailed hundreds of different victims online. However, since specific data is not collected by any federal entity on online sexual extortion, the full extent of this crime is largely unknown. In an attempt to better understand and address these serious threats facing women, men and children on the Internet, please provide information outlining the efforts the Department of Justice is taking to collect this critical data."

The specific wording of Boxer's letter is important in two respects. First, by focusing on the "serious threats facing women, men, and children," she is asking not simply about child exploitation issues but, more generally, about the frequency of "online sexual assault." The Justice Department and FBI often talk about sextortion as simply a child exploitation matter. Our data do not entirely support that. While a majority of cases do involve children, a substantial minority involve adult victims too. So by asking the question this way, Boxer is asking about the prevelance of sextortion as a crime, not the prevalence of sextortion as a mode of child exploitation and abuse.

Second, it will be very interesting to see whether and how the Justice Department responds to this letter. When we sought data on sextortion prevalence from the Bureau of Justice Statistics, we were informed that BJS was “not able to separate out” sextortion cases from other types of cases, as “federal data is based on statute and does not provide the detail needed to identify these offenses.” The Justice Department public affairs office flagged eight specific sextortion cases for us but noted that this was a “sampling” because “the department does not have a data-tracking category for sextortion.” My impression is that the FBI may have good internal data on the cases it investigates—an impression created in part by a recent Justice Department report that refers to a 2015 FBI analysis of 43 sextortion cases. But I honestly don't know how easy it will be for the Justice Department to respond to Boxer's inquiry.

That's one of the reasons we suggested in our report that federal authorities begin tracking these cases as part of routine crime data reporting. Here letter will be a good test of whether the problem is one of public data or of any data.