Florida Judge Upholds Conviction By Defining "Email" To Include IMs 412
Simmons was also convicted under a different law against luring a minor via the Internet, and there seems little doubt that he violated that law. But the harmful to minors law is separate; it prohibits "transmission" of data that is "harmful to minors", and includes the clause: "(b) 'Transmit' means to send to a specific individual known by the defendant to be a minor via electronic mail."
I think that how one reacts to this decision is basically a litmus test for how much one cares about the rule of law. The state legislature obviously would have included instant messages in the statute if they'd thought about it at the time, especially if they thought that someone would later try to use that as a loophole to escape conviction. And if Simmons had gotten off, the legislature almost certainly would have amended the law to include instant messages. But it's hard to argue with the fact that the law as written was limited to e-mail, and did not cover the instant messages that Simmons sent.
Justice Peggy Quince, writing unanimously for the Supreme Court, acknowledged this objection but answered it by arguing, "To the extent that the term 'electronic mail' is not sufficiently defined by the statute, we interpret it as including both email and instant message communications sent to a specific individual." But what was her basis for saying that "electronic mail" was not sufficiently defined in the first place? She also wrote in a footnote on page 11, "We agree with the First District's interpretation of 'electronic mail' as including both email and electronic mail sent by instant messaging." The phrase "electronic mail sent by instant messaging" sounds like something Ted Stevens would say.
But Justice Quince won't be subject to the same ridicule as Ted Stevens, and she knows it. It's not as if many people will come forward to criticize the court's decision, only to be attacked with cries of "Either you're with us, or you're with the terrori -- I mean, the child molesters!" However, she could have taken a stand in favor of the rule of law, by saying that Simmons clearly didn't violate the law against transmitting harmful to minors material by e-mail, and if the legislature wants the law to cover IMs, they have to go back and change it. (It's not as if he'd walk away with a clean record, since he'd still have a conviction for luring a minor for sex.) It is discouraging that neither the District Court nor any of the judges on the Florida Supreme Court chose to take that stand.
Ironically, this court decision may partly help the ACLU and other groups when they challenge other state laws that prohibit the communication of certain types of material "by e-mail" -- they could argue that the definition of "e-mail" is unconstitutionally vague. If the judge peers down at them and says "What the hell are you talking about? Everybody knows what e-mail is", the ACLU can argue, "Not necessarily. The Florida Supreme Court thinks that it includes instant messages. And, Your Honor, since judges are the wisest beings in the universe, if even they can't figure it out, what chance do the rest of us have?"
I'm #1 (Score:2, Insightful)
Re:What's the difference? (Score:4, Insightful)
I'll bet (Score:5, Insightful)
I agree with the judge (Score:5, Insightful)
The right decision (Score:3, Insightful)
Anyhow, if you check answers.com, the 4th defintion of mail is:
"Mail or messages sent electronically; e-mail."
'Instant messages' are 'messages sent electronically'. Even if the law included 'instant messages', how specific are they to be when they define it? The judges made the right decision.
interpretation is good (Score:3, Insightful)
Re:Probably right (Score:5, Insightful)
This only goes to show how stupid an futile it is to create special laws for the Internet. Solicitation of minors, or any other communication, is just that, no matter what medium is used to convey it.
Not a stretch of the imagination (Score:2, Insightful)
The Judge Isn't Wrong (Score:2, Insightful)
Re:How does that work again? (Score:4, Insightful)
Re:Probably right (Score:5, Insightful)
The judge probably did the right thing. The man was still attempting to socillicit from an underage girl over the internet, who cares excatly which communications protocol was used?
I do. If you take the time to look up the millions of obscure laws written half in Latin, the least you should be able to expect is that the law be enforced as written. This guy was already guilty of violating a different law and their was no reason why another "on the internet" law should have been applied.
The difference is between living in a state where people are ruled by laws and living in one where people arbitrarily enforce their beliefs upon you. Just because you agree with the beliefs in this case does not make it any less wrong. Two wrongs don't make a right, and that is exactly what is being done here.
Comment removed (Score:5, Insightful)
Re:I agree with the judge (Score:3, Insightful)
Re:How does that work again? (Score:5, Insightful)
Just because e-mail isn't defined by legal statute doesn't mean that this judge was wrong: e-mail does have an entry in the Oxford English Dictionary, which is generally recognized as the lexicographic index to the English language.
That sort of definition would almost have to include IMs and messages posted to a message board or newsgroup, wouldn't it?Comment removed (Score:3, Insightful)
Arrested for sending pictures to the sheriff? (Score:4, Insightful)
I'm curious as to how this works. Based on the article, it seems as though he is being charged based solely on what occurred between him and the sheriff pretending to be a little girl.
I'm sorry, but does nobody else find something wrong with this? I'm not saying that this guy didn't necessarily deserve it, but how can it possibly make sense for him to be charged for sending images of himself to a 'fictitious' person (i.e. the sheriff pretending to be a little girl). In other words, if the sheriff hadn't lied about his identity, there wouldn't have been a crime here, even if the man had done the same thing?
I'm all for stopping/getting help for people like that, but how on Earth is the above a crime?
They're not trying to be clever, (Score:3, Insightful)
The electorate, of course, loves this kind of "skewering the latest boogeyman" by legislators and will vote early and often for those that pass the most specific, most draconian laws.
Re:I'm #1 (Score:5, Insightful)
Hmmm... interesting politically moral question.
Do we do what's right with regards to justice?
Or do we do what's right with regards to (legal) policy?
I would side with the judge and say this law should include IM's and any electronic communication, VoIP, blogs (MySpace), etc. However, this does leave open the attack for a different case, where it's not as obvious or the crime is not as heinous, to be exploited in the same regards... think RIAA.
I think this is a situation where one has to weight the seriousness of the crime against the importance of the law.
This makes me think of the case in Wisconsin [channel3000.com] where 2 guys saw a picture in the newspaper of a 21 year old girl who recently died in an accident. They thought she looked pretty so they went and bought some condoms and dug up her grave. They where caught at the cemetery, before anything could come about, but since there were no laws on the book, they couldn't stick any charges to these guys.
This is a situation, again, where the law should be capable of proper punishment of these people and not just some petty crime because 'there was nothing on the books specifically'. In a perfect world, we would all agree and we wouldn't need written laws because we could just file things case by case, but that's just not realistic.
Cheers,
Fozzy
Re:Thought Crime (Score:3, Insightful)
This is the problem with lawyers, they try to make obvious things complicated. he was clearly trying to get with a 13 year old, there is no question about that.
The person attempted to commit a crime, he tried to get with a 13 year old (but he was a sherrif)
The person attempted to commit a crime, he tried to get with a prostitute (but she was a cop)
The person attempted to commit a crime, he tried to buy drugs (but they werent real drugs)
Re:The right decision (Score:3, Insightful)
Makes sense to me.
How about we change it to the term 'communication'. What's the difference whether the act is in person, via snail mail, IM, email, phone, text message....And we wonder what could be wrong with our system of law. Sheesh.
The lawyers are the ones that are able to abuse the system via pedantry, but they are only acting within the confines of a system of rules we laid out for them...it's to be expected really. The real problem is the fallacy that to define law, one must be as explicit as possible at all times...this is a catch 22...Gee, I wonder why laws continue to get more verbose, more complicated, more laws covering the same or similar issues....
What's wrong with 'Murder Is Illegal', 'Solicitation of Minors Is Illegal'....etc etc...
We laid this trap for ourselves...thank god there's at least one Judge out there that gets this. Now on the the real problem, fixing the completely borked system we're currently trying to use.
Re:parents are super-protective (Score:3, Insightful)
It's a statistical fact that the more sensitive you make the test, the more false positives you get. People are more touchy nowadays (compared to ancient Greece, for example), so you get quite a few cases of normal behavior labeled as inappropriate nowadays. Unfortunately such a mistake absolutely ruins someone's life - can you imagine having to live as a "sex offender"? We have to ask ourselves how far this is going to go.
Comment removed (Score:5, Insightful)
Re:What's the difference? (Score:3, Insightful)
Now, when they wrote this law, the people who put it on paper put down "email" to define the method of communication, when they shouldn't have specified.
Along comes this case, about a guy who unquestionably solicited sex with a minor, but ooops, technicality, he can't be prosecuted because he didn't use "email".
The judge, doing what judges are supposed to do, ruled that just because the legislators were dumbasses and said "email" doesn't mean that they hadn't intended to cover cases exactly like this.
I think it's a good call based on the law. Now if you're saying, "Any law that ads a penalty for sexually soliciting a 13 year old online is stupid, and should be repealed" that's a separate issue. But don't blast the judge for making the correct call based on his level (Florida law, Florida crime, Florida court, Florida judge).
Re:Probably right (Score:2, Insightful)
The difference is between living in a state where people are ruled by laws and living in one where people arbitrarily enforce their beliefs upon you. Just because you agree with the beliefs in this case does not make it any less wrong. Two wrongs don't make a right, and that is exactly what is being done here.
No. No matter what society you live in, laws are interpreted, and that does not mean "arbitrarily enforcing
Interstate Commerce Clause (Score:4, Insightful)
Re:I'm #1 (Score:3, Insightful)
The fact is that not adhering to the letter of the law puts the whole legal system in a position to be much less respected and much more abused.
Re:What's the difference? (Score:3, Insightful)
Think about it this way. Should the Judicial department be able to modify laws already on the books? I do not mean a constitutionality yes or no, I mean actually being able to modify and change them.
This guy, who is not elected, just bypassed the entire process of bill creation, the elected representatives and the governor, to change the law to how he felt it could be. That is the dangerous slope here. If the judge is able to do it with this law, why not any other law?
While I do agree what they guy did should be illegal, it was not illegal with the way the law was written. Which, should just be re-written for soliciting a minor, regardless of the medium.
Re:What's the difference? (Score:5, Insightful)
Legally, yes- which is how it should be.
I work in a lawyer's office, and I was dealing with a case almost exactly like this one. The court (thankfully) ruled that if the framers had intended for the law to cover the specific issue we were dealing with, they should have written it that way. As it is, the law is clear in its written meaning- and therefore any loopholes have to be fixed legislatively.
Re:I'm #1 (Score:4, Insightful)
I think this is a case where technology moved too fast for the law to keep absolute specifics in place, but it's not a big deal. Is an IM really *so* different from an e-mail message? Besides the speed of communication and responses they are by definition almost identical. So what if they use different network protocols? That's like saying someone's complaint is invalid because they use an IMAP mail client and the law only mentions POP3.
Re:Probably right (Score:4, Insightful)
The problem with this is that tech changes waaaay too quickly to try and be specific in every law.
I see very little need for tech specific laws. The laws are supposed to be arbitrating conflicting rights. In principal, adding technology to the equation does little or nothing.
I mean, you're the same guy who, in 5 years will be saying, "Hey the law only covers IM, Email, Blog posts and VOIP...It doesn't say anything about holo-chat rooms!"
We already have a law that says it's illegal to solicit a minor for sexual acts. Why do we need one to add another penalty if it is done on e-mail, IM phone, messages on rocks, or mental telepathy?
Forcing the law down to a super nit-picky technical medium is ripe for setting up a huge number of bad precidents.
Agreed, which is why laws should be about actions, not the means by which those actions are completed. I victim is just as dead whether they're killed with a rock, a firearm, or a disintegrator ray. That is why the law should ban murder not killings with rocks or firearms or disintegrator rays.
Yes I do. If it is is unethical to knowingly solicit a minor, then it is unethical to do so via any medium and there is no reason for mediums to be specified in law. The only reason these unnecessary laws are passed is to garner votes from morons. "Look how tough governor Smith is on cyber-criminals. Now they are convicted of two crimes for each act and serve twice the sentence instead of one." It is idiotic and needs to stop.
Re:What's the difference? (Score:2, Insightful)
Re:I agree with the judge (Score:4, Insightful)
Committing a crime across state lines can be done via post, phone, shortwave radio transmision, laser communications, telegraph, visual signaling, etc. and yet there is not a different punishment for each of these different transmission methods, but suddenly using the network of the internet makes the crime worse? If there is a justification then I'm all ears, but thus far I can't think of one and no one has provided one yet. And before anyone replies, try applying your argument to the phone vs VOIP phone scenario and see if it still sticks. But I welcome all reasonable replies.
Now to fend off any straw men:
1) I do not disagree what happened was a crime and the offender should be punished if tried and found guilty.
2) My argument here is that ANY crime should not have the punishment increased just because it involved the internet unless that is specifically relevent to the case, otherwise same crime = same time. I'm generalizing this to help people step back from the immediate overreaction that seems to cause all logic to fly out the window when discussing crimes involving sexual assault/soliciting/etc of a minor.
3) Yes, I agree sexual crimes against a minor are horrible and should be pursued and punished fully, no one is saying otherwise. However, when developing laws we must weigh all facts and not just go with our gut, there needs to be reason on our side to hold the moral high ground.
4) We can have our cake and eat it too: we can make sure the perpetrators of these crimes are punished appropriately AND uphold the rule of law, we just need to actually divorce ourselves from emotion when crafting the laws to be sure that they make sense and are enforcable.
Double Jeopardy? (Score:2, Insightful)
(It's not as if he'd walk away with a clean record, since he'd still have a conviction for luring a minor for sex.)
Why is it not double jeopardy to face charges of both "soliciting a minor" and "soliciting a minor through such-and-such method of communication"? If you are found guilty of the second, you are necessarily guilty of the first, but you have committed only one distinct crime.
davidh
Re:What's the difference? (Score:1, Insightful)
I certainly hope that you aren't a lawyer yourself given your obvious inability to communicate without resorting to obscenities & name-calling.
I believe what the GP post is indicating is that people dislike lawyers because they get caught up in the specifics of the law rather than the intent. And that they often use these specifics to get criminals off, regardless of the INTENT of the law.
Sorry, they aren't protecting my freedoms in the manner. People protect freedoms, not rules written on paper. In this case, I congratulate the judge in question for using some of that gray matter between his ears & deciding that IM SHOULD be covered by a law that specifically mentions e-mail.
I find it morally reprehensible that a lawyer would try to get someone off based on the technicality...and I believe so would most people. Which again, is why many people dislike laywers. Perhaps you should consider adding this thought to your own worldview.
People are people, just like laywers. And sometimes they have a greater understanding of what's in the best interest of society than lawyers do.
Re:What's the difference? (Score:3, Insightful)
The fact is, if people had wanted something to be wrong, they should have written that into the LETTER of the law. It is absolutely morally and legally reprehensible to retroactively change the rules and then punish people based on that- and that is almost exactly what happens when people start using the 'spirit' of the law. The spirit of the law is irrelevant. What is relevant is the letter of the law, because that is what people can read, that is what is written down, that is what is static. Spirit changes depending on who's spirit we're talking about.
Redefinition (Score:3, Insightful)
Re:I hope you are joking (Score:3, Insightful)
How do you know his fetish isn't 40 something cops pretending to be little girls?
Re:I'm #1 (Score:2, Insightful)
But what about the fact that, despite the entire community and legal system (judges, lawyers, police, citizens, etc) wanted to charge the people in this case with a serious crime, but could not. Would it not be a failing of 'law' to punish people for doing things that where deemed wrong by the community, without question or 'reasonable doubt'? I don't recall one person thinking there might be some 'reasonable' explanation for doing this gravedigging act.
True, but like this email case, this graverobbing case is similar in that there are plenty of laws on the books against unwanted sexual contact. Only, the laws are stated (or implied?) that the people are alive. There are also laws on the defacement of property, breaking and entering, etc. but none are specifically stated to include the situation described above. A dead person cannot say no. Digging a whole in someone else's ground is not a serious offense, despite what the person was going to do. You can throw the book at someone with a gun on his way to commit murder, but how do you charge someone with a shovel, digging a whole, to commit, what may or may not be a crime if there are no laws that saying specifically?
Should law interpretation be a reasonable power for judges? We know that this has been major issues in the past US elections with regards to the definition of marriage. I could argue for this in both ways and agree with it in both cases. Laws work best if there's black and white, it's the gray area that makes things difficult.
Cheers,
Fozzy
Re:I'm #1 (Score:5, Insightful)
Re:Look at the Protocol (Score:5, Insightful)
From this, I'd conclude that you understand little of email in general, and completely misunderstand SMTP.
The RFCs that define SMTP don't talk about email servers. The primary intended implementation would attempt first to make a direct TCP link to the recipient machine, and if successful, the message would go directly from source to destination machine with no intermediate "server" machines.
The primary reason that email servers exist is that Microsoft's DOS systems at first couldn't do direct TCP connections to each other, because they couldn't run a background task to listen on an IP port. Or even if they could, the machines usually had only a modem internet connection, so most of they time they weren't connected to the internet at all, and attempting to connect to them would fail. So the server approach was added to SMTP to accommodate machines with such intermittent network connections.
Even now that many home users have always-on internet connections, there are still many who don't, so the server system is kept alive. And ISPs do like it, because storing all messages on their server lets them do commercially-useful things like scanning the messages for keywords, for use in targeted advertising campaigns. (And it also means that they can comply with government access requirements if necessary.)
But the idea that email always works by bouncing messages off servers is flat wrong. I routinely run a number of email agents (some of which I wrote myself as tools to diagnose network problems) that deliver email by connecting directly to the machine in the address, and hunt around for servers if that fails. If I were to send you a message from the machines that I work on most, you'd see only one "Received:" line in the headers, indicating that it reached you in one hop with no intermediate servers involved. Unless you're on a Microsoft system, of course, in which case you're still probably not running an SMTP listener, so my machines can't connect to your port 25. (People knowledgable in SMTP will now explain why you still might see only one "Received:" line.
I'd go into more detail, but I can hear the readers falling asleep already
Re:Look at the Protocol (Score:3, Insightful)
And if a chat program had a feature that people could send you messages without you being logged in, then I would say that did, in fact, count as an email program.
Re:I agree with the judge (Score:3, Insightful)
This is not to say we should never differentiate between crimes based on minor differences. Assualting someone with your fists vs with a tire iron should be taken into account.
I'm arguing that using the internet in the case of this crime is a trivial detail that has no bearing on the underlying act such that it should affect sentencing. Specifically relating to this case we're talking about a crime committed IN Florida, and ONLY in Florida so we can even rule out the hypothetical cross-border state law variations. Why does solicitng a minor in person vs soliciting a minor over the internet require a different penalty? I am fully willing to accept that it should require a different penalty, but only if it makes sense and there is a legitimate reason, which thus far I have not heard. It is a crime to solicit a minor, period. The medium used in this case does not enter into it in the same way that it might in for example a libel case where the medium used might more directly affect the scope of damages.
Re:I agree with the judge (Score:3, Insightful)
What worries me as much... (Score:4, Insightful)
I don't know the name of the movie, but there was a trailer that was running for a while, where an adult was at a club, and two hot twins offer sex to the adult. The adult asks "You two are 18, right?" and the response was "Well, together we are 34!". While this was obviously intended to be humor, it presents a reasonable hypothetical situation.
Re:I'm #1 (Score:4, Insightful)
What annoys me about this whole discussion the most, though, is how Slashdotters complain that legislators and lawyers don't understand technology, but when they do the right thing, they get blasted for it. "Electronic mail" probably should have been "electronic messaging" but that's really neither here nor there. These people recognized that the intent of the law was to protect people from electronic solicitation, and they applied it. You can't wait for the wording of the law to catch up with you--court decisions are what push the laws to change. There's no automatic review of most laws, so if you want them fixed, you have to take it to the courts or to the appropriate legislative body.
Slashdotters want the law to change to reflect a better stance on technology, but when someone takes the steps to make that happen, they're derided. Maybe instead of childish anarchism, everyone should go back and take a basic government course.
Re:Arrested for sending pictures to the sheriff? (Score:3, Insightful)
How exactly is this not entrapment? I'd love for those with a legal education to explain to me how and why this is not a Thought Crime.
Re:Arrested for sending pictures to the sheriff? (Score:3, Insightful)
How exactly is this not entrapment? I'd love for those with a legal education to explain to me how and why this is not a Thought Crime.
I don't think it can be done. This is entrapment, pure and simple. It is a thought crime, pure and simple.
I have a friend whose brother-in-law, aged 19, just out of high school, not that bright, thought he had a girlfriend he met online. They'd been chatting and flirting for months. She finally arranged a meetup; he got all dandied up and drove down to finally meet her, and was arrested. Because the 14-year-old high school freshman was actually a police officer.
So now he's on sex offender lists, and is considered a sexual predator. But on top of all this legal stuff, he is suffering a broken heart, because he actually thought he had a girlfriend (again, he's not very bright, and very naive). Even if this guy did go meet up with a real high school freshman, where the hell is the harm? A girl chats you up for months and then wants to see you, why wouldn't you? Especially if she's only 5 years your junior? This is entrapment.
Even if he were 45, though, it'd be entrapment. We might not like the idea of 45-year-old guys picking up 14-year-old girls, but in any case, we are dealing with two people who are, biologically speaking, adults, and who, in not too many years past, might have even been eligible for marriage to one another. The age difference does not magically make a sexual liaison between them "rape," and in these cases, the guy probably has no intention of forcing himself upon the girl; he thinks he's being invited. People's basic sexual drives will always trump legality with a little enticement, and these cops give way more than a little. I don't care what age it is; this is dirty pool entrapment.
It is also a thought crime. Basically, we are arresting these people for wanting to have sex with people the law and their parents have decided is too young for them to have sex with. Even if we as a society have decided that physical sexual maturity does not imply ownership of one's body (something I find baffling, and which seems to have a lot more to do with puritanical superstition than logic--but I'm in the minority there), no one is having any sex in this case.
This is part of the "easier target" syndrome I see in police work all the time. We as a society don't like older people having sex with people still in public education, but those people are hard to catch, so let's arrest people who can be convinced to meet up with a girl after months of enticement because this identifies them as the type of person who might do that. We as a society don't like parents who sexually abuse their kids, but those people are hard to find, so let's go after people who look at pictures of them doing it (much easier target because there are more of them, due to the endless non-destructive copying ability of computers and the internet), because those people seem to be turned on by that kind of thing. We as a society don't like people who peddle poison, but those people are hard to find, so let's go after the people who buy it, because they are a lot more numerous. We as a society don't like people who hijack planes and crash them into buildings, but those people are hard to find, so let's just treat everyone who gets on a plane like a terrorist.
I agree with or understand most of the rules and laws of society, and subject myself to them even if I don't, because that is what being a member of society means. But where I start to lose my willingness to support them is when they are so hard to enforce that we actually have to search for people violating them. Rules and laws are simply meant to keep the peace. They are not meant to be moral edicts. Basically, if no one is complaining, there is no problem. Laws are meant to deal with problems. More and more, police work seems to be focused on causing problems so that they can enforce the law.
To be honest, I don't care if an
Re:Arrested for sending pictures to the sheriff? (Score:3, Insightful)
He can say it.
But that will mean taking the stand, with all the risks of cross-examination. It means opening the door to just about anything that might cast doubt on his character and credibility.
He can say it.
But that doesn't mean the jury is obliged to believe it. Not after they have read the transcripts. Not after they have seen the photographs.
The Florida law defines the crime as an attempt to solicit a minor: actions in the real world, not the dream realm of thought crime. In refusing to see and accept the distinction, you have fundamentally misread Orwell.
Re:Arrested for sending pictures to the sheriff? (Score:2, Insightful)
Sorry, I really have to disagree on this. In 1984, the protagonist was arrested for *attempting* to purchase antique goods, the trade of which was illegal. It was a blatent case ef entrapment, as well. The whole point of a thought crime is that the *action* is prohibited because the *thought* behind it needs to be supressed. The supression is so critical that we must go search out possible violators.