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: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
Interstate Commerce Clause (Score:4, Insightful)
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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:I'm #1 (Score:5, Insightful)
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.
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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: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
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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.
How does that work again? (Score:5, Interesting)
I think you've painted yourself into a corner with that argument.
Re:How does that work again? (Score:4, Insightful)
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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.
That's a misunderstanding both of how the system works and of the ruling itself. First off, this ruling only applies to Florida. Second the only thing that was decided here was that the anti-solicitation law passed in F
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Note: I clearly do not know what I'm talking about.
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: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?Re: (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 someon
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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.
Probably right (Score:2)
The decision was definiately in the spirit of the law, even if it does mean "bending" the letter of the law.
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.
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The intent of the individual involved was clear, so I'm wondering what difference it makes if he'd used a telephone, instant message, email, or IRC.
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.
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Realistically, ever since we were founded as a nation, our lawmen have made interpretations of the law to let go people they felt would not be a problem (or who had power... or who they liked... or who was a relative) and other interpretations to stop criminals and dangerous people (and those in groups they didn't like... or with a skin color they didn't like... or who they personally disliked).
Where you are coming from is the "
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I'm sure if you ask the legislators responsible, they will unabashedly say the reason was "to punish them more than before." More charges = higher score.
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.
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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 st
Re:Probably not right (Score:2)
Next time i hope they charge someone who actually used email but sent it to an 18 year old girl. Then he can redefine 18 to mean 17 and charge him under the same law. I mean why let these guys slip by, just because the girl had a birthday the day before.
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I don't even know that this is really bending the law. Mail is just a system of sending messages, and so instant messaging definitely qualifies as "electronic mail" in the general sense of the term. Some instant messaging services even save messages on central servers to be delivered when the recipient is available -- in that case, even the function of the instant message is essentially the same as
I'll bet (Score:5, Insightful)
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Slate article on foreign law in opinions [slate.com].
I agree with the judge (Score:5, Insightful)
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He said he specifically avoids sending a detailed code of conduct and ethics to his executives because he believed that would encourage them to look for loopholes in it. Instead he just says something like you did above like "you are responsible for the good name of the company. Don't do anything that would damage it."
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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
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In my state, the crime is still a crime (soliciting sex from a minor), but there are additional penalties assessed if the crime occurs over Internet. The crime by itself is punishable by a maximum sentence of 4 years in prison and/or a fine of up to $4,000; do it on the Net and it becomes a crime punishable by a maximum sentence of 10 years and/or a fine of up to $10,000.
Big difference.
The Florida statute is probably
Comment removed (Score:5, 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.
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Often, maybe, but not in this case, even if they did find for the defendant on this particular charge... he was already busted for soliciting a minor. What this is about is that the court did not throw it out due to "email" being very poorly defined. Because of that, these is less of a chance that it will be changed. Yes the judge noted the poor definition, but at the same time, allowed
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I'd rather see one person stand up and do the right thing at some point in this process, than to see it passed off in the hope that someone else would fix the problem.
More than that, I'd like to see the system fixed. Pedantry at the expense of common sense...how did we let things go so far?
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The exact medium is now has become irrelevant, considering that automatic gateways exist between email, text messaging, IMs, and html (webmail,web im). Online is online, and in particular, IMs with delayed delivery (ICQ,AIM), and websites with accounts and "personal messages", can function exactly like traditional email. I don't see why someone should get off the hook for any non-RFC-co
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Huh? Since when can judges extend the scope of a law through the use of common sense? The judiciary should act as a restraint on the legislature.
Correct. And until then, only e-mails should be used as criteria for conviction under the law.
Interpreting the law is one thing (and I favor a pretty broad definition of interpret). But I don't think the answe
Privacy laws cover IM too then? (Score:2)
Although if email and IM's are basically 'any electronic communication', why not put the phone under it as well?
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You have no expectation of privacy involving the other party you are communicating with.
IE, you tell me something on the phone you want to not be known...I blog about it, I did not invade your privacy, you told me.
You hoped I would keep it a secret, but your hopes doesnt matter
You can expect a third person to not receive your conversation, however you should expect the person you intended to communicate with to receive it, and unless you trust
Why Bother? (Score:3, Interesting)
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.
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Anyhow, if you check answers.com, the 4th defintion of mail is: "Mail or messages sent electronically; e-mail."
I'm not willing to accept that as the authoritative definition. By that definition, telephone calls would be considered e-mail. Heck telegraphs would be considered e-mail. I don't buy it.
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But isn't that why we have judges and jury. So they can make the proper distinctions within the spirit of the law?
No we have judges to interpret what the law says, not to infer the intent of the lawmakers with regard to things they did not include. This is no different in principal to a lawmaker interpreting a homicide statute to convict someone of slaughtering cows. I mean cows are people too, right? Sure they are, the same way an instant message or phone call or paper letter is an e-mail message.
As fo
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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
interpretation is good (Score:3, Insightful)
Not a stretch of the imagination (Score:2, Insightful)
The Judge Isn't Wrong (Score:2, Insightful)
Some cases differences are substantive (Score:2, Informative)
Not all instant messaging systems act this way. IRC lacks delayed pickup, and IRC's DCC mechanism is not a store-and-forward system.
If the message in question was more like ICQ than email, the lawyer should appeal.
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this is probably a good thing (Score:2)
Fine by me (Score:2)
Slippery slope? (Score:2)
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Well, when lawyers are involved, a law (or application of the law) can mean any single thing that the lawyer can convince 12 members of the general public that it is.
It has absolutely zero to do with reality.
Florida definition of 'electronc mail' (Score:5, Informative)
Here's the definition in 668.602:
IANAL, but it seems pretty obvious that this should cover instant messages as well as e-mail as it does not refer to any of the RFCs for e-mail (2821, 2822, etc).
The rest of the law can be seen at http://election.dos.state.fl.us/laws/04laws/ch_200 4-233.pdf [state.fl.us].
IANAL, but why is the Internet any different? (Score:2)
Otherwise, you just end up piling on new laws whenever some new medium is introduced.
I'm glad the judge can decide that IM or Email is irrelevant in this case, but should he have to make that call of common sense?
whine whine (Score:3, Informative)
Actually, Florida statutes state:
"electronic mail message" means an electronic message or computer file that is transmitted between two or more telecommunications devices; computers; computer networks, regardless of whether the network is a local, regional, or global network; or electronic devices capable of receiving electronic messages, regardless of whether the message is converted to hard copy format after receipt, viewed upon transmission, or stored for later retrieval.
According to this definition, instant messages are clearly electronic mail in my mind. This might not jive with the typical geek nomenclature, but it is well within the realm of logic.
This issue has nothing to do with child molestation, and their decision to classify IM as email was not "fudged" to convict a single molester of an offense. Supreme Court decisions such as these create a binding precedence for all other courts in the state to follow. In FL, the law is now that IM=email, unless and until the legislature amends FL statutes to expressly preclude the Supreme Court ruling.
Not a bad decision, really. (Score:2)
c i told u (Score:2)
How *do* you define "e-mail"? (Score:2)
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?
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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
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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
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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
I also agree with the judge. (Score:2)
This is ridiculous - should such a rule also mean people who use Outlook and Exchange be exempt from the law because they don't use SMTP to talk to each other?
"E-mail" is a term used to describe a "mail" sent "electronically" - it is not a big leap that a message sent from one computer user to an
parents are super-protective (Score:2)
Sometimes this leads to less than desirable side ef
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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.
Redefinition (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:What's the difference? (Score:4, Insightful)
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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
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.
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But I know and work with a lot of lawyers who are not. I know a lot of lawyers who are out there to protect their clients, society at large, and themselves. I know a lot of lawyers who exist just to protect the freedoms we take for granted.
The fact is, this is very much a matter of freedom- and just because you don't like whose freedom
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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
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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 supp
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Think about it this way. Should the Judicial department be a
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there. now its all legal.
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And the difference of buying drugs from a cop pretending to be a dealer is? It's not like they get to keep the drugs they buy from the undercover cops.
Calling this a thought crime is a joke. How many times did this person actually commit the crime before he was caught? This was thought translated into action. When he thinks about committing the c
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The statute states:
Any person who knowingly utilizes a computer on-line service, Internet service, or local bulletin board service to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child or another person believed by the person to be a child, to commit any illegal act described in chapter 794, relating to sexual battery; chapter 800, relating to lewdness and indecent exposure; or chapter 827, relating to child abuse, commits a felony of the third degree, punishable as pr
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Punishing people who have not
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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
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How do you know his fetish isn't 40 something cops pretending to be little girls?