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?"
How does that work again? (Score:5, Interesting)
I think you've painted yourself into a corner with that argument.
Re:Probably right (Score:3, Interesting)
However... this is from the post right above yours:
Actually, the stronger issue is that companies are required to maintain e-mail records for X number of years - in case of court cases, audits, etc. This ruling now makes companies accountable for maintaining IM traffic (and possibly other similar data) as well. THAT will be of grave issue.
The rule of unintended consequences is in full effect. For example, in my great state of texas, the DA has "misinterpreted" the law so that people with crackpipes are felons instead of misdemeanors (sp). The end result is a $59 *million* dollar a year bill for incarcerating them- an estimated $250 *million* dollar bill for new prisons because the misinterpretation means we have a lot more felons than we used to. An entire *class* of minor criminals who will now basically be *forced* into lives of crime since as convicted felons they are going to find it very hard to find work and they will be well "educated" while in prison by the hard core felons.
The United States currently incarcerates people at a higher rate than soviet russia did. Most of it over drug issues and a growing number over sex offenses.
The problem is that as we are getting better and better at tracking and detecting crimes- it's becoming clear that *MANY* people engage in criminal activity in their teens and twenties- they just used to get away with it or it was put down as youthful hijinks.
Re:How does that work again? (Score:4, Interesting)
That's how geeks would define it. SMTP, POP, RFCs.... But the law was talking about electronic messages sent to a particular person. That definition includes IMs. I don't see that as much of a stretch myself.
Re:What's the difference? (Score:3, Interesting)
While I am generally all about internet freedom etc, I think that this is an acceptable means of interpretation. I get that the law itself was not meant to cover things like instant messageing, but I think in a case like this, it really doesn't matter, it is all about the same - internet communication.
Again, as possed in the article, it really comes down to, which is better and/or right:
To have a very narrow law (only e-mail) and then through interpretation expand it to include similar types of communication (instant messaging).
-OR-
Have a broad law that already includes everything (all internet communication).
While I agree that both have up and down sides, I think that the former of those two is better. If we allowed criminals to get away with things like using AIM to get young children, just because it is not explicitly spelled out in the law, then we are failing as a law making society.
Also don't forget, it is the judcial branches job to interpret the laws, so making this interpretation could be considered well within his rights.
RonB
Re:Probably right (Score:3, Interesting)
Why Bother? (Score:3, Interesting)
In short, the only distinction that should be made, is whether the communication was broadcasted, or narrowcated.
Re:How does that work again? (Score:3, Interesting)
"1. messages distributed by electronic means from one computer user to one or more recipients via a network
2. the system of sending messages by such electronic means"
You could call a Sidekick a computer, since it does alot more than just make phone calls, and the cellphone provider attaches it to a network..so under this definition, a text message from someone on a phone would count as 'email' and would fall under this law's jurisdiction.
Zooming out a little bit, any phone-to-phone, pc-to-phone or phone-to-pc text or IM message would match up with this law. Zooming out further and something as ancient as a teletype/telegraph transmission, unlikely though it might be, would also apply. It is electronic, it is sent from an electronic device over a network to another device, with the intent of delivering information to an end user.
An earlier poster quoted "'Transmit' means to send to a specific individual known by the defendant to be a minor via electronic mail." I have to take issue with the wording here, because it's disputable whether or not one could really 'know' someone online is a minor prior to meeting them, just like most people don't know the person on the other end of the heated cybersex chat is a bloated over-50 transvestite bus driver. There is a certain amount of assumption here but I wouldn't call it 'knowing' by any stretch. But, for the purpose of keeping molesters locked up (which is especially prevalent in Florida for some reason), I suppose the wording is 'good enough'.
Re:Arrested for sending pictures to the sheriff? (Score:3, Interesting)
I understand your discomfort. It's a good thing. "The price of liberty is eternal vigilance" is more about keeping an eye on the small things than the big, flashy, obvious things.
But in the real world, the optimal balance between liberty and justice requires a few ugly bits, because that's just the way the world works. Nothing is ever as clean in practice as it is in theory and justice is no exception.
Arresting and convicting someone in a sting is certainly a bit dodgy, but it's a tool I would not want to take away from law enforcement; net-net, the benefits outweigh the dangers. Just watch them carefully (at least in the aggregate; we can't all watch ever law enforcement agency all the time).
Re:I'm #1 (Score:2, Interesting)
My read is that legal policy is a human endeavor, and so must change often, while justice is a pure concept that is far too rare.
The term "electronic mail" is pretty broad. Possibly, this is exactly what they had in mind when they chose it. Perhaps they should have used the phrase "electronic correspondence" so as not to set off our analytical klaxons.
The only problem I have with their ruling is that it's too narrow. Must we have a court precedent set for each and every protocol? Any jackass can see that IRC has been (amongst other things) a feeding frenzy for pervs for as long as it's been around, yet this ruling doesn't seem to apply to IRC, because of it's "one to many" nature. That is debatable, and so it falls to judges to make the interpretations until the legislature clarifies their intentions.
It would be a shame for a child to be endangered because some state legislator doesn't know anything about using the Internet. It is good fun to make fun of these people, and goodness knows Ol'Stevens should have stopped talking before he started, but when it comes to a court of law, people are ruined, and ruins of people plead for justice.
Re:Interstate Commerce Clause (Score:3, Interesting)
Re:Interstate Commerce Clause (Score:3, Interesting)
Re:How does that work again? (Score:3, Interesting)
The OED got it wrong. If it's not RFC 2821 it's not email.
Not surprising really, english geeks don't usually know much about technology.