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Florida Judge Upholds Conviction By Defining "Email" To Include IMs
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?"
That's what happens when the people who write the laws don't understand the technology the new law governs. #1
Since judges can decide that 'e-mail' is vague enough to consider any and all forms of electronic message transmission covered by that term, somehow laws that specify 'e-mail' are somehow delegitimized?
I think you've painted yourself into a corner with that argument.
On a serious note, what is the difference? In essence aren't you still transmitting words for communication across the Internet?
If brevity is the soul of wit, then how does one explain Twitter?
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?
The decision was definiately in the spirit of the law, even if it does mean "bending" the letter of the law.
You won't hear social conservatives crying "activist judges!" about this one.
Sheesh, evil *and* a jerk. -- Jade
Often in the court system, these legal loopholes (be they ill-defined laws or what have you) allow criminals to go free. The judge took common sense and applied it, something judges are allowed to do, as lawyers try to circumvent the law by defeating it with specifics. Kudos to intelligent decision-making, and it's time to rewrite the law from "e-mail" to "electronic correspondence".
Yes... all instant messages are e-mails just like all Canadians are French... riiiiiiight.
In most countries standard mail is protected by law for privacy invasion. In a lot of countries email is also covered by the same protection. Can we add IM's to it then?
Although if email and IM's are basically 'any electronic communication', why not put the phone under it as well?
Otherwise, do you expect legislatures to start specifying RFCs? And how about when there are changes to it?
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.
In times like these, it is helpful to remember that there have always been times like these. - Paul Harvey
This is why we use human juries and judges rather than literal linguistic processors to interpret the law: to allow the courts to make the judgment that, if doing something via e-mail is a punishable offense, then doing it via IM is as well. While technically different, they are effectively the same thing in this context. I'm a card-carrying civil libertarian, and love playing pedantic word games as much as any lawyer, but sometimes common sense is a good idea.
http://alternatives.rzero.com/
"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."
You cannot make that assumption. Maybe they would have included IM and then again maybe they would not have. The point is that the same faulty reasoning could be applied to any other law and then the next thing you know, judges are writing law rather than the legislature. Oh, wait....
A judge's job is to interpret what IS present in the law, not to interpret what is NOT present.
"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."
It's not hard. It is impossible. If the legistature intended the statue to include IM, then they need to go back and amend it.
Despite what other posters have said about this ruling involving a Stevensian understanding of the Internet, I think the ruling makes perfect sense. Instant messaging is differentiated from email only by the speed of normal interaction. IMs, like email, are a one-to-one interaction, as opposed to open-channel chat, which is potentially a one-to-many interaction - each participant has a specific expectation about the intended recipient.
The difference between "email" and "instant messaging" is a technical one, not a difference of substance. A statute that applies to "soliciting minors via phone lines" would almost certainly also be applied to cell phones, even if there's no "line" involved. "Electronic mail", as opposed to "email", is not such a specific phrase as to disinclude electronic forms of communication that are not "email", and it would be unreasonable to expect the state to come up with a new statute every time someone writes a new program and calls it something else.
Additionally, the court ruling states:
Here's the link to the Florida Legal Code.
The fact of the matter is that the actual section of the law that he was being prosecuted under relates to the Internet in general. It could have been a series of windows messenger popup alerts and it still would have gone through under this statute because even that could technically count as an "online service."
I seriously doubt that the conviction would have been over-turned if the judge had defined email in a more limited fashion.
Without knowing the details of the case this sounds like a GoodThing(TM). Part of the reason why we have so many very very very specific laws is because in the recent past we have shied away from letting judges do their jobs and y'know, actually judge. Things like mandatory minimums are similar in that they an effort to remove the ability from the judge to actually judge, and in the end turn him into a sort of legal babysitter. The one thing that this sort of trend requires though, is a Congress that will actually consider impeaching a judge if he consistently shows bad judgement. It's the one check on the segment of the judiciary that serve life-long appointments without the constant need for re-election.
This is why I allways solicit underage sex via carrier pigeon.
"Have you ever thought about just turning off the TV, sitting down with your kids, and hitting them?"
Wht r u wearing? I wan 2 f u. Huhuhuhuhuuhuhuhuhuhhuhuhuh.
The judge ruled in the spirit of the law rather than the letter of the law - fine by me. Pedophiles are not a protected class.
If IM text can be considered in the same vein as email, then this could open up any legislation which specified email to other interpretations. Let's say you have a blog concerning the campus party scene and some minor subscribes to your RSS feed in their RSS-enabled email client. If you blog about something that can be construed by someone as "harmful to minors" does this mean that your RSS feed should be classified as email and you should be subjected to this legislation?
Want to improve your Karma? Instead of "Post Anonymously", try the "Post Humously" option.
The specific law should have been worded to include any kind of generic electronic and/or digital communication. This would cover both e-mail and IMs. While the judge was correct in his decision, these are the kinds of distinctions which can get a child molester off on a technicality.
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.
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Ok, this guy needs help, but he has been convicted of thought crime, not an actual crime.
Note, that in other types of stings, the person trapped by the sting actually did something illegal. They paid money for real drugs, they paid money for guns, they paid bribes to a real politician and were caught on tape/video.
In these cases we have the novel situation where all the object of the sting actually did was transmit objectionable material to an adult, posing to be a child. But because the perpetrator held in his mind the belief that the recipient was a minor, this is a crime, according to the FL statue. The belief, his thoughts, make the crime. That's thought crime, and we should run, screaming, away from these sorts of laws.
That's not necessarily true, the common definition of e-mail and the legal definition of e-mail may be very different, but I'm not a lawyer so I really don't know what it is.
The fun part about being on a slippery slope is that you get where you're going (whether you want to be there or not) a lot faster. Yes the essence is similar, but the trend toward broadly interpreting law to include elements or activities not specifically addressed is alarming. At least it is to me.
Those are my principles, and if you don't like them... well, I have others.
Groucho Marx
Surely, whether something is illegal or not should be completely independent of your method of correspondence. If I use the internet, I am in reality doing nothing different from using the postal service, fedex, telephone or fax.
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?
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.
"If you think you have things under control, you're not going fast enough." --Mario Andretti
An instant message sent to an IP address is a bit like a postcard sent nextday air and requiring hand delivery. Sure, there's no envelope, and it doesn't end up in a mail box, but it still obviously counts as mail.
c i told u that emailz r prety much da same as ims i dont relly c what the diff is its just sending msgs to diff ppl way2go judge ttyl
For all those of you, including the article submitter and the editor that approved the submission, who think that this is utterly insane or activist, please realize that the statute doesn't define what "electronic mail" means. What is the difference between e-mail and instant messages? If you can't clearly delineate them in a way that is so unassailable as to be subject to judicial notice, then why do you expect (or, for that matter, trust) a judge to so delineate them?
You can argue the case if the instant messaging system is a store-and-forward system that allows a delayed pickup of the message. Phone-texting and many internet-based IM systems work this way.
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.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
Notice: IANAL and i'm not citizen nor resident of the USA (INCORoUSA).
Leaving the 'protect the children' meme aside...
I think it is possible to define most of electronic based text communications under a generic term such as 'email' or 'electronic mail'. In this case, I believe, the judge did uphold the "spirit of the law". Certainly electronic communcations do change constantly: Many have shifted to IM style, which attracts mostly young people because of the inmediate response and increased interactivity between the parts.
Laws should have the >least loopholes possible, or it gives the criminals the chance to evade justice. As I already said, electronic communications are changing forms, and the only way a law can contain a definition is by being broad (which is not necesarily a good thing) or by having judges and juries who give a resonable interpretation to it.
Here's what I don't get:
If it's really that bad for a 13 year old to be involved with an older person then why isn't there more emphasis on busting the parents. Letting a 13 year old set up an unsupervised IM account is like dropping a 13 year old off at a singles bar.
If a 13 year old is going to have access to an IM account (or myspace or whatever) then it needs to be an account that is shared by the family. It should be called smithfamily1234 rather than iluvbritney1234 and the parents need to carefully monitor who the 13 year old is talking with and what the content of the conversations is.
I could see not holding the parents responsible when some stranger knowingly sent unsolicited adult material to a child or even when an adult abused a position of authority (priest, coach, etc.). If the child has a private account and is using it to flirt with older people then the parents need to be getting as much jail time as the flirting older people.
and it's time to rewrite the law from "e-mail" to "electronic correspondence".
Thats why I use snail-mail for all my pederasty needs
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?
Ignoring this case and looking to the future, I think the legislatures should all enact laws that make it illegal to get off on a technicality. If a defendant gets off on a legal technicality where he WOULD HAVE BEEN otherwise convicted then said defendant is automatically charged with this offense - which carries a sentence twice the length of the original charges. See how many people want to get off on technicalities then.
The story poster has a clear bias in his writings that reads as if he thinks the person who committed the illegal act should get away with, because the electronic messaging protocol he used was IM instead of SMTP...
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 another user on another system whether or not via a central server could be construed as "E-mail" - as such I would have ruled the same way the judge did... and would have done so if it were via IRC, SMS or any other electronic messaging system...
So in other words, if you find some loophole in the law, it is OK to solicit 13 year olds?
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
It is human nature to take shortcuts in thinking.
they're pandering to an idiotic electorate that is excited by sensationalist news. They pass laws addressing email specifically probably in response to some news story or series of news stories on local media. They do it just so that in the next election cycle they can say "And I fought to protect your children from having to receive email solicitations from online predators!"
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.
STOP . AMERICA . NOW
Why not charge him soliciting an underage girl then instead of changing the definition of email?
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.
I not being observant, not judgmental here. Some of the harshest laws deal with crimes against children. Just having child pr0n on disk can get one into jail. The long running NBC Dateline series on internet predators is fascinating[*]. Just driving on the street of a sting setup gets one busted- that demonstrates serious intent. Anyone who spends time in the backcountry knows one of the most dangerous things is to get between a parent and its offspring.
Sometimes this leads to less than desirable side effects. Like zealous photo developers reporting beach pictures or naked-baby-on-bed photos. Or teachers, coaches, and clergy told NEVER to hug a youngster anymore, whether the youngster has made an amazing sports victory or bawling their head off.
[*] People like seeing bad guys humiliated, and Dateline does this to the extreme IMHO.
""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? "
You ask what her basis was? The fact that only the words "electronic" and "mail" were used. There was no mention of RFCs, no mention of SMTP or POP3 or anything of the kind. All that was received from the legislature was that there is something that somehow resembles "mail," differing from regular mail in that it is "electronic." The phrase may heavily imply to you that the law must only apply to SMTP, etc, however the courts are constitutionally bound to go with what the legislature tells them to work with.
Since they're only given the noun "mail" and the adjective "electronic," it is proper to include forms of written correspondance, resembling "mail," that is sent from one point to the other "electronically," regardless of the protocols that are used.
We have a hard enough time keeping track of acronyms around here (ISA? DDR?), the best you and I have to go with is context. But the only context the courts are allowed to go by, constitutionally, is the context the state legislature has provided them in writing the laws. This is the "rule of law" you claim to be arguing in favor of.
"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, "
You're not arguing in favor of the rule of law, though. You're arguing in favor of the rule of law as amended by tech geek lingo, demanding that "electronic mail" be defined as you understand it rather than as the legislature understood it. Further, you are attempting to change the definition of "electronic" in "electronic mail" to mean something more limiting than what is commonly accepted, on the basis of what can only be described as slang.
That is logically invalid. Email implies transmitting online (E -> T) and IM implies transmitting online (I -> T), but you cannot determine E = I from that. Sorry, try again.
Comment removed based on user account deletion
The only thing that should matter is the addressing capability of the medium. When I make a phone call, or a cell call, or open an IM window, or send an email, or post a letter, the messages are addressed to a specific individual or group of individuals. I expect the communication to be private. When I join a public chat room, or talk into a CB radio, or send smoke signals, or use a bullhorn from my balcony, or put up posters in the local food court, I know that my messages are not being addressed to a specific individual, or group of individuals (despite the fact that they may be intended for a specific individual, or group of individuals). They are being publicly broadcast. I expect no privacy in such communication, unless I impose it via encryption.
In short, the only distinction that should be made, is whether the communication was broadcasted, or narrowcated.
When our name is on the back of your car, we're behind you all the way!
I agree that Slippery Slopes are dangerous, but I just don't see this as really being one. Does adding IM to the law fundamentally change it? In other words, IM and e-mail are essentially the same thing, are they not? (Maybe they're not, if not correct me) Since the whole point of the law was to make it illegal to use the Internet to direct messages to known-minors, then Judicially including IM'ing doesn't strike me as part of a slippery slope.
If brevity is the soul of wit, then how does one explain Twitter?
It's not hard. It is impossible. If the legistature intended the statue to include IM, then they need to go back and amend it.
Either that or more explicitly define electronic mail as a message adhering to RFC 2822, is transmitted across TCP port 25, received on TCP port 110, et cetera.
We can simply define 'electronic mail' as mail, or a message, sent electronically, as opposed to physically, where it was received by the recipient in an instant. An 'instant message' if you will.
Since the legislature did not specifically define what they mean by 'electronic mail,' how can you be sure of their intent?
Comment was made that you can get busted for having kiddie porn on your hard disk.
Well consider this, what IS kiddie porn?
Have you seen some of those new commericals on tv that are computer generated? Some of
them look like they have live actors, until you look closer. Computer generated graphics
are now able to replace live actors (remember the movie 'looker'?) Soon there will be
computer generated kiddie porn (and adult porn for that matter) that will pass for the
real thing! How could this be a crime (no children would be harmed in the making of
computer generated kiddie porn). Sure, who ever wants this stuff is a pervert, but a
criminal? Something to think about.
This isn't a slipperly slope. It's a case where the people who wrote the law had an intention: to make it illegal to sexually solicit a minor across the internet.
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).
ad logicam Claiming a proposition is false because it was presented as the conclusion of a fallacious argument.
Well, frankly, I don't understand what you're trying to say. Since one is transmitting on line and the other is transmitting online they're different? If you could explain it in a bit more detail I'd appreciate it. And if you can elaborate on the distinctions between the two, that'd be great, too. Because to my eyes they are pretty much different colors of the same thing.
If brevity is the soul of wit, then how does one explain Twitter?
I could not disagree with you more. This is the sort of thinking that has allowed G.W. Bush and company to ignore the 4th Amendment and have the NSA eavesdrop on Americans. It's an argument that says that it's OK to ignore the letter of the law when it's convenient for the state or society to do so. The Florida legislature did not include IM in their list of communication methods that are included in the law. Perhaps they did that to protect Mark Foley. ;) It's the job of the courts to enforce the laws as written, not to act as mind-readers, no matter how worthy the cause, and extend the law because they think the legislature intended to cover a particular act which was not included in the law. If the judges think the law should have an IM provision then they should encourage the legislature to amend it. They should not take it upon themselves to rewrite the law - they are not the legislature.
On another aspect of this case - does it bother anyone that a police officer is posing as an underage girl to entrap men into this sort of crime? IANAL so I've never understood why it's OK for agents of the state to pretend to be persons they are not, solicit others to commit a crime, and then arrest them for the act that they incited. If I do that as a citizen it's called conspiracy. What is it about the fact of being in the employ of the state that suddenly makes it OK to disobey laws that apply to ordinary citizens? I've got no problem with the police, when they have reason to believe, because of other investigation, tips, etc., that a crime is being planned or committed, infiltrating an undercover agent into the operation. My objection is to the state's habit of having it's agents pose as someone else and then actively soliciting criminal activity.
Just my $.02,
Ron
Impeach Barack Obama for violating the Constitutional requirement to be a "natural born" citizen to hold the office of P
The prime example I usually bring up is the interstate commerce clause. Congress used it to justify writing laws to promote civil rights, beyond the powers granted to them by the Constitution (specifically, the 10th amendment in the Bill of Rights). I'm a big fan of the motivation, but I've always questioned the means...
Ben Hocking
Need a professional organizer?
That's what happens when the people who write the laws don't understand the technology the new law governs.
This is why there is such a big debate about the letter of the law vs the intent of the framers of the law. The framers of this law obviously did not intend to limit the it to digital traffic submitted via SMTP on port 25, but that is pretty much what they wrote in the law. The judge in this case obviously went with the intent rather than the letter, which is the correct choice. Unfortunately, it is not so clear in many other cases.
There is no "I disagree" mod for a reason. Flamebait, Troll, and Overrated are not substitutes.
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.
No, it's not hard at all.
ScuttleMonkey, if you're going to argue that the term "electronic mail" has an accepted legal definition and that instant messaging does not fall within it, you're going to have to do better than vague hand-waving. What are the definining characteristics of "electronic mail"?
"Messages transmitted using the SMTP protocol"? No, that can't be right, because it would exclude (among many others) site-specific mail systems, like those used on MySpace or Facebook. Obviously not the intent of the law's authors.
We can assume that "electronic mail" must be electronic and must be mail. We know what "electronic" means. But what does it mean to be "mail"?
Dictionary definitions vary, but a common theme is that mail is a system for sending messages, or the messages themselves, often with a specific intended recipient. Under that sort of definition, we would find that both email and IMs meet the definition, while non-targeted broadcasts -- such as posting to a newsgroup, serving a webpage, or talking to an open IRC channel -- would not. It makes sense to me.
The job of the courts is to interpret the laws as written by legislators. They did so in this case, and their interpretation is by all means a reasonable one. Where is the problem here?
... in which occasion, feel free to mod it into the ground.
Still, to construe IM as a form of electronic mail is not such a stretch. Just like email, or paper mail, you compose text, "send" it, and it's there waiting for the recipient. What seems to me to distinguish it as "mail" is that a) the recipient need not necessarily be waiting at the computer for it to be received, and b) the medium does not require an immediate response, unlike, say, telephone, a face-to-face conversation, VoIP, or anything else of the ilk.
Doesn't mean it's the right or wrong interpretation, but I do believe it's a valid one.
Who said it doens't cover instant messaging? Since mail is a letter or parcel, and a letter is a written message, then email is an electronic written message. Instant messaging is an instant electronic written message, hence instant messaging is instant email.
Not really - because the phrase "the rule of law" does not mean what you think it does. It emphatically does not mean that the law is (as you imply) applied in a mindless manner. It means that a legal framework exists and is followed as the basis for society, and that the law is applied procedurally and equally to all. (We, as a nation, are certainly not perfect at it - but we try pretty hard and mostly suceed.) Our (US, Common Law) system by design allows judges some limited freedom in interpreting and applying the law, they are meant to consider (to some degree) the spirit, meaning, and intent of the law - not merely what is spelled out precisely in black letters. (I.E. the law is not a programming language.)
The reality is that judges make this judgement call on a daily basis - whether to interpret the law in one way, or whether to interpret it in another and toss the problem back into the lap of legislature. Our system even provides the defendant relief from the decisions of an individual judge via the appeals process - where other judges apply their interpretations. And though it provides no relief for the individual, society itself is still protected because the legislature can clarfy its meaning through additional laws or changing existing ones.
Again - this is part of the 'rule of law', the appeal to the collective wisdom of judges across time and space. All those books you see in lawyers offices (both IRL and on TV)? Those aren't collections of laws, they are collections of legal decisions. Lawyers study these to learn the logic applied in other cases - and to see how it applies to the case at hand.
Parenthetically speaking - while I'm no longer surprised by the ignorance of the law prevalent among the
I agree that Slippery Slopes are dangerous, but I just don't see this as really being one. Does adding IM to the law fundamentally change it? In other words, IM and e-mail are essentially the same thing, are they not? (Maybe they're not, if not correct me) Since the whole point of the law was to make it illegal to use the Internet to direct messages to known-minors, then Judicially including IM'ing doesn't strike me as part of a slippery slope.
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.
Fly me to the moon Let me sing among those stars Let me see what spring is like On jupiter and mars
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.
"It is possible to commit no errors and still lose. That is not a weakness. That is life." -Peak Performance
The distinction is that email and IM are distinct formats both to the average person (a big thing in laws) and the legislators -- who decided to use the term "email" and not "online communication." The court here is obviously wrong in how it's interpreting the law -- you have to see why it's crucially important that the wording of what is and is not legal is precise and you can't simply say "it's close eniugh."
Some people who were groped would insist it was rape. Should be prosecute it as such?
Both murder and homicide in self-defense are intentional killings of another human being. Close enough, right?
See where I'm going?
We can simply define 'electronic mail' as mail, or a message, sent electronically, as opposed to physically, where it was received by the recipient in an instant. An 'instant message' if you will.
... Like television's a/v message? ... Like a web page's text and multimedia message?
Sort of like a phone call, in which an (audio, rather than text, but not important by your definition) message is sent electronically to the receiver in an instant? Sort of like radio, in which a message is sent electronically to the receiver(s) in an instant?
I agree with the grandparent. The judge exceeded his or her authority (as best I, a common citizen, can comprehend it) and is promoting further sloppy legislation by endorsing it.
Except that IM is a text-format message delivered via a computer network. Thus making it e-mail. Wether the protocol (or whatever, not a network engineer) is also called "e-mail" is irrelevant.
Remember that the courts don't use the formal jargon to refer to technologies, they use fuctional definitions wherever possible; to do otherwise would be stupid as tech moves at least twice the speed of law. What you're proposing is the equivalent of me saying "you can't convict me for holding those donated organs in an unrefrigerated vessel! It wasn't actually a vessel, it was a flash drum (steady-state flow system, for those of you in the other engineerings)! Ha! Acquitted!" Seriously. Technical jargon != legal definition.
...it's really a sad day for America when we require a goddamn ACT OF CONGRESS to make our DVD players work properly. ~
If you step back a few feet, SMTP and the various IM protocols are basically the same thing. Just because one is preceived to be handled closer to real-time than the other does not make them legally different. If I sent a message from one Gmail account to another, would that not still be "e-mail", even though no SMTP was likely involved?
This is why idiots shouldn't right laws. "email" is a casual, invented term. Why wouldn't use the term "electronic messaging?"
Better yet, why not just make the penalties for solicitation of a minor harsh enough that you don't have to charge the a55hat with multiple crimes?
It's the job of the courts to enforce the laws as written
In short, no. It is the job of the executive branch to enforce the laws. It's the job of the courts to interpret the laws.
But IANAL, IANAJ
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?
First of all, he is elected.
I really don't understand the mindset on slashdot; it doesn't take much effort to learn a bare minimum about the U.S. legal system. In many states/municipalities judges are elected. All you have to know is that one basic, easy-to-remember fact. THEN, whenever you're tempted to criticize a judge for being unelected, you just do a quick google search.
And maybe you and everyone here who's complaining should look at the damn law. He was convicted of violating 2 obscenity statutes; neither one says e-mail. The first refers to "computer systems", the second just to transmittal. The judges interpret the law as the legislature wrote it.
Damn judges! Legislating from the bench! Won't anyone think of the children! Oh, wait...
People don't know the letter of the law intuitively. Just as we learn the letter of the law, we can learn the way it's applied and enforced. And we can apply the law more to judges themselves.
A judges' job is to interpret the law. It's part of our entire people-based government. Democracy is messy, but its the least bad government we've yet created.
There probably should be more checks and balances on judges, like more formal reviews more often, by Congressional committees including legal orgs, private citizens, and probably even juries. Judicial respectability often hides incompetence and political agendas. But we need to extend our system in its natural way to enhance the accountability of judges. Because we're never going to make the law speak for itself.
--
make install -not war
All this guy did was talk to a grown man on the internet. He never talked to a minor, therefore he did not violate any 'harmful to minors' law!
Not a Twitter sockpuppet... but I wish I was.
This is exactly the reason that people hate lawyers.
What I find interesting about this is not necessarily how the definition of e-mail was stretched to cover instant messages but rather for the definition to be stretched even further. Does this mean that posting on a public forum messageboard could get somebody in trouble for soliciting? What about porn spam on these boards. How about a youtube comment on a video....? There are so many ways to communicate by sending messages "electronically" that I wonder if it we should define these things strictly.
And, quite fucking frankly, this is the reason why lawyers are so misunderstood. Yes, people hate lawyers. Yes, I agree there are some really, really crappy lawyers out there.
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 freedoms are being protected doesn't mean those freedoms deserve to be protected any less.
So get off your fucking moral high horse. Lawyers are people like anybody else, they just have a greater understanding of the legal issues- and sometimes, yes, that changes your worldview. What ignorant schmucks like you don't understand is that it often changes your worldview for the better.
"It is possible to commit no errors and still lose. That is not a weakness. That is life." -Peak Performance
the internet...
where all the men are men,
where all the women are men,
and where all the children are female fbi agents...
who are actualy men.
Simmons, not knowing this should be a crime - you got off easy.
You compose an email message and send it to your email server. The email server then figures out which server it needs to be delivered to based on the recipient. It gets sent to that server and the user sees it in their inbox, and their email software examines the header to find out who it came from.
Compare to IM where you compose a message and send it to your IM server. AOL then figure out which of their servers the recipient is connected to and send it there. The user then sees it on their screen and the IM software examines the header to find out who it came from.
It's not like the law specified SMTP or POP3. Electronic mail already includes many other protocols.
I agree that it's bad to have such a vague law, but an Email Service and an IM Service are almost functionally identical - just used in different ways.
(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
Wow. What an intelligent and thoughtful post from someone who works in a lawyer's office.
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.
I didn't say I didn't understand his point, or even disagree with it. I only stated that this is why people hate lawyers. Personally, I dislike that we have people who think we need one law making it illegal to proposition a 13 year old via email, and another for IM. I think one law covering the act in general would suffice, but perhaps I'm over simplifying.
Does this mean that we can take the laws against spam and spammers and apply them to spim and spimmers?
I had to turn off ICQ long ago as I was getting three times more offers for "Hot Russian Womans" and "Free Microsoft Downloads" than I was getting legitimate communications.
Time to log in again and start accepting "friends" so I can sue them for each "electronic correspondence".
Except that the "dumbasses" were elected by the people. Is it really the judges role to interpret new intentions into the wishes of the people?
What's next? Redefining a minor as somebody who is younger than 30, because obviously, even at 30 some people are still immature? And use that interpretation to jail half the country?
I'm 95% sure that MSN uses a protocol based on e-mail with stripped out headers anyway... so surely that classes as e-mail, just with a dedicated instant client? Joe
FYI: Legally what this judge did is "judicial activism" -- this is an activist judge, plain and simple. Does that change your impression of this judge? The reason lawyers try to get people off on a technicality is for *your* sake. Miranda, Terry, Apprendi and the like were not exactly good people....
When in doubt, parenthesize. At the very least it will let some poor schmuck bounce on the % key in vi. (Larry Wall)
I find it morally reprehensible that a lawyer would try to get someone off based on the technicality
So in your view, the guilty should lay themselves upon the mercy of the State? The same State that sanctions torture, indefinite detention, and tasers for sass? The same State that has build a system of laws that result in someone being tried 6 different ways in 3 jurisdictions at 3 levels for the same crime; for precrime?
No thanks, I think I'll side with the lawyers over the United States Government acting on behalf of the will of the people.
This is a hot button for me. Everyone seems so concerned over making new laws to meet technology changes, but fundamentally, it's the message, not the media. An adult luring a girl for innapropriate contact should be a crime, regardless if the communication were done electronically, on paper, or via smoke signals. Making a law that is focused on the media of a message is ridiculous. It's the message itself that is the problem. If someone shows you an inappropriate picture of a child on a paper photograph, you don't go sue Kodak for the technology for printing the picture. It's the photographer and the distributor of the picture who are the criminals... Why is that so difficult to understand?
This is the essence of the argument right here. Although they shouldn't have specified, they *did*. While I agree that their intent was to prevent this sort of thing the fact of the matter is that, due to the language of the law it's not clear to me that they succeeded. These sorts of technicalities and loopholes are the domain of lawyers and lawmakers - a poorly written contract is still a legally binding one and that's why this particular law sucks.
I don't think anyone is trying to argue that grown men should be allowed to stalk underage girls - I'm certainly not - I'm just saying that because the law was poorly written it's going to be contentious. The slippery slope comes in when the argument "Oh, I'm sure that's what they *meant* to say" becomes good enough to jail someone. If it takes someone getting off the hook to get the law changed then so be it. Illegally obtained evidence is enough to let someone off the hook. Violation of rights during arrest - ditto. Why is this different? Criminals slip through the legal cracks all the time - that's how you find them and hopefully fix them. Painting with broad strokes like this only propogates the construction of poor legislation. These people get paid a lot to do their jobs - why not make them do them well?
On your last point, I actually do think that internet-specific laws against this are stupid because this activity is already illegal so I think the means of contact is irrelevant.
Those are my principles, and if you don't like them... well, I have others.
Groucho Marx
His perceived that he was talking to a minor, that is against the law. He's a sick-o and needs to be put somewhere were he can do no harm.
What I post on slashdot, AC, has absolutely nothing to do with how I behave in my professional life. Slashdot is where I can let off some steam with nerds, not have to spend an hour and a half drafting a letter to make sure that every comma is in the correct place.
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.
"It is possible to commit no errors and still lose. That is not a weakness. That is life." -Peak Performance
If we take email to be like letter writing, how is an IM different from a letter with faster transmission time? Are we going to get to the point of having "email" defined as services using the SMTP protocol? Then if I were to log onto Gmail and send an email to someone else on Gmail and we both check our "email" via the web browser, then at no point did it leave the server and travel over the Internet, aside from the initial composition and final reading, which did not use any traditional mail services. And Gmail has reply by chat that gets included in the email history.
The intent and the execution of IM also fits the dictionary definition of email. I'm not commenting on whether the law is right or wrong, but I do think that, without a legal definition of "email" included in the law, the definition used by the court is not unreasonable.
Learn to love Alaska
If this judgment is unchallenged, or upheld on appeal, Mark Foley could be in big trouble if he sent some of his infamous IMs to minors when he was in Florida.
No, I see what you mean, and I'm sorry, I overreacted. I have just had enough (especially today) of people being snarky about how lawyers are all bad people and everyone hates them because they're scum.
It really pisses me off; mostly because people don't understand the law, don't see how important lawyers are for actually getting their rights codified and made precident, and how important lawyers are for restricting the awesome power of the state.
"It is possible to commit no errors and still lose. That is not a weakness. That is life." -Peak Performance
This is a scary wrong statement on so many levels. First the Judicial branch is not supposed to legislate. That's why it's called the Judicial branch and not the Legislative branch. Basically what your advocating is that every judge can arbitrarily determine what is legal without regards to the law. When judges start basing decisions on the word "should" the system starts crumbling. You're advocating the elimination of rule of law. A judge who can make rulings based on whether something "should" be illegal has the power to arbitrarily circumvent the law based on the judges individually beliefs. If they don't like green they can rule that wearing green is illegal.
Rulings like this are scary in that they do appear to be attempts at legislating by judges. One would hope the wrong interpretation is through a lack of understanding rather than an active attempt at judicial legislation but the statement by the judge hints that it's more the later. Any judge that bases their decisions on how "heinous" something is rather than on interpretation of the law should be impeached and disbarred. To a strict christian or muslim judge using their gods name in vain "should" be illegal. You want judges who can have you thrown in jail because you said dinner was good enough for jehovah?
Who is John Galt?
I'm not a Troll, it's reverse psychology.
I think that the law should be amended to include "electronic communication" rather than "electronic mail." Email and instant messaging are two very distinct methods of communication from an interaction standpoint. Electronic mail is asynchronous and heterotopic, that is, different place and time. Instant messaging is synchronous and heterotopic, that is, same time and a different place. The immediacy of the conversation is entirely different; there is greater interaction with IM than email.
Colin Dean Go a year without DRM
As computer-oriented people, I'm a little surprised that people are making this huge distinction between IM and eMail. The difference is merely one of presentation. Each passes text messages between two or more recipients, displays the text messages, often saves them, sorts them, and can present them again in the future. In both, the messages come with metadata giving the time and date, the person who sent it and the recipient. And before the world had IM, people used eMail in the same way they now use IM, to have text conversations.
Here are slashdot we are very fond of generalizing, and for good reason. When we hear a court case or patent application which makes a certain claim, we are quick to generalize and make predictions about how the ruling/patent will impact other technologies, and we are right to do so, because that's how the law works. In this case, we have a law which applies to email, and the judge found that IM is enough like eMail to call it eMail, and he's right.
I might ask you, what would you call Gmail? to me, the interface looks more like an IM interface, with conversations being presented in crono order. And personally I've often wondered why eMail and IM have not yet merged into a single application concept.
Finally, this ruling helped put a predator in prison, so the outcome is also positive, in addition to the legal ruling being positive.
Actually, it is and -- surprise to me -- supports your side completely. I stand corrected, the legislature is full of idiots in this case.
e =View%20Statutes&SubMenu=1&App_mode=Display_Statut e&Search_String=mail&URL=CH0668/Sec602.HTM
(7) "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.
http://www.leg.state.fl.us/statutes/index.cfm?mod
The core question here is the justification for making distinctions about how someone solicits sex from a minor. Why is it more wrong to do it over email/IM than, say, in person, or via snail mail? In other words, it's a bogus law created by politicians pandering to mothers' fear of online sexual predation. We don't need this law, and by this judges ruling, it will now be harder to remove it.
damaged by dogma
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.
Several bills were introduced in the Ohio legislature to one-up that concept.
Prior to all the fears regarding the internets, it was illegal to solicit a minor 14 and under. (It seems a little odd to have a two year age gap where it's ok to solicit, but illegal to have sex with because they haven't reached the age of consent, but if everyone just calms down and thinks, you'll realize that the law prohibiting solicitation was intended more to reduce/eliminate annoyance/inconvenience/not put barely adolescents in uncomfortable situations. For many years, the legislature must have thought anything over 14 can handle itself, which I agree with.)
The legislature upped the soliciting age to 16 only if the solicitation happens on the internet. Though I'm bothered by having two separate solicitation ages, and legal inconsistencies bug the hell out of me, it still seemed ok because it was set to the age of consent.
So a flurry a bills were introduced to set the over the internet age of solicitation to 18. I think this is in reaction to the Mark Foley scandal. Now things are getting ridiculous...under the proposed law:
a.) it would be illegal to ask someone for sex whom I can legally have sex with under Ohio law over the internet
b.) but it's perfectly fine for me to ask them in person or, from what I recall of the proposed laws, over the telephone
Keep in mind everyone--this soliciting over the internet law is used rarely to convict someone who actually has solicited a real minor for sex. It's the law used in police stings when you got a deputy pretending to be 13. Since no true minors are being helped by the law one way or another, I also suspect that law enforcement wanted to see the law changed, frustrated that their 13 year old bait wasn't working well, and hoping 17 year old bait would work better.
IM is very similar to Email to the point of the same thing. The courts have a job of upholding the law, and protecting the public interest, in this case this is a good decision, the problem is we need someone to revamp the laws and define e-mail.
The biggest problem is no one has defined it and really any law applied to e-mail should be applied to IM. It is a personalized form of communication, it works the same as e-mail but it's intended for even faster communication. It's like trying to say the cell phone isn't a telephone because it's mobile and always available.
Is there really that much difference in IM and email? Are you doing something illegal on IM that would put you in jail on Email? The simple answer is Stop it then. Don't fight against the law if it's just or being applied correctly. I'm really getting sick of hearing "outrage" and looking behind it to find someone trying to hide their own illicit activities. At the very least be honest to yourself.
The purpose of a defense attorney is never to say "My client is not guilty." His job is to say "If you accuse my client of a crime, I am here to make sure you play by the rules which you have set for prosecuting the charge."
You are here claiming that it's okay for legislators to write vague, poorly-defined, wishy-washy laws and statutes, and then do whatever the hell they want based on "Oh, well, we know what we meant." No. If the law is not defined to cover something, then that's it -- it's over. The ability to re-interpret it to mean what you think it should mean instead of what it actually says is terrifying.
I would much rather see a "criminal go free" based on this sort of thing, than to give any authority the ability to run amok and prosecute anybody based on such arbitrary and vague laws they want to interpret to suit their immediate needs.
Pointing out that a law doesn't define what the hell it's talking about is not a "legal loophole". It is saying that the action is not illegal, since "illegal" means "against the law". And you can't do something against the law if the law in question doesn't exist, or doesn't apply to the situation.
Furthermore, your definition is question-begging. "Criminals go free..." No, they don't. A man is a criminal when he has committed a crime. A crime is committed when he is in violation of a law. To be in violation of a law, there must be a law in place which specifically and precisely defines what action is being referred to. How can someone be a "criminal" when he hasn't broken a law? (And no -- saying that the law "should have" been in place doesn't cut it.)
I agree that it is prudent to rewrite the law from "email" to "electronic correspondence", but you cannot go retroactively rewriting things and then prosecuting people on that basis. Your line of thinking is extremely dangerous.
mirrorshades radio -- darkwave, industrial, futurepop, ebm.
It it just to us nerds that the law appears incomplete. Taking the actual law rather than our brain-parse of it, it uses the words "electronic mail" not email. I'd argue (though IANAL) that mail is a narrowcast written communication. So whack an 'electronic' on there and IM is certainly arguably electronic mail (though not email).
Though to argue with myself, I'd really want to include 'delayed pickup' in my definition of mail, which would thus mean IM isn't electronic mail as the point of it is that it's instant. Though the 'leave a message for the offline person' would be included.
It's not uncommon for pages working in Congress to come from a representative's home district. If the page Mark Foley sent explicit IMs to is from Florida, he may be in big trouble, on account of having having used IM to transmit "harmful" material to a Florida minor.
This is not my sandwich.
So can someone explain, in a way that makes sense to a programmer who works with email all the time, how email and IM differ?
;-).
...
I mean, I've written a lot of email software, some of which does IM, and I have no idea what distinction is being made here. I've always thought that IM was just a marketing term for yet another implementation of email. It's a somewhat limited sort of email, of course, due to the limitations of the tiny little gadgets that it's implemented on. But that's not materially different from the limitations of the machines that we did email on back in the 1980s.
Why are people trying to pretend that IM is something different? What properties are they noticing that I'm failing to see? It can't be just the size limits; that's too stupid a distinction for even politicians and lawyers to attempt to make.
It can't the the rapid deliver or notification by a beep; we did that on computers before 1980 and we called it email (usually with a hyphen back then
What is the distinction? Curious readers want to know
Those who do study history are doomed to stand helplessly by while everyone else repeats it.
In this case, as well as the one you stated, Expost Facto certainly applies. Expost facto being latin for "After the fact". In the United States, you cannot arrest someone for breaking a law, then change the law to include them. If they have even halfway decent attornies, they should realise that their convictions are null-in-void. The situation you named follows the same standard. Cant arrest someone for something that isn't yet in the books, or go back and arrest them after the fact, as it was legal then.
And to be clear, IANAL
Warning: Corny karma killing post above.
As it is, the law is clear in its written meaning- and therefore any loopholes have to be fixed legislatively.
Without taking into account any sort of pragmatism, ideally we would have clear, effective laws and if someone commits an offensive/harmful act that is not covered by these fine laws we would let the offender off and say "gee we'd better make a law for that" and then we would. In practise things don't and shouldn't work that way. There are very many terribly written laws out there, which intertwine with each other and are not clearly interpreted, so we end up getting mired in definitions and semantics and technicalities in the absence of common sense.
To me, the judge made a CORRECT decision. It is very clear to all but slimy lawyers (there ARE good ones, but all too many are slimy) that the law was intended to address the problem of paedophiles soliciting minors for sex over the internet. When the law was written, IM was likely not forefront in the framers' minds because it was either uncommon or nonexistent. Furthermore there already existed in Florida law a LEGAL (not technical) definition of email that encompassed any person-to-person electronic distribution of content. Why this is a controversial ruling here I don't know.
Is this a good law? NO...it is one of those terrible laws. It is because lawyers are attracted to politics and become legislators--unfortunately the slimier the lawyer the more likely this happens (it is rare indeed when a truly altruistic, ethical and highly skilled lawyer enters politics). This law should've never been made--existing laws protecting minors from sexual predators should've been amended to make penaltes tougher and broaden the definition of sexual solicitation to include means that do not involve physical proximity in general.
This makes sense, so why didn't it happen? Because SLIMY LAWYER POLITICIANS MAKE BAD LAWS ON PURPOSE. Laws are made that are either poorly defined/too open to judicial interpretation, or otherwise make laws that are too narrow in scope (something along the lines of "it is illegal to rollerskate on city sidewalks between 7AM and 8PM on Mondays, Thursdays and Saturdays"). Why on earth would they deliberately do this? They do it to ensure the advancement of ther own careers and those of their slimy-lawyer buddies. This too-specific law probably came about as follows:
* A paedophile acted on his urges by luring and raping a child via the internet using e-mail (as we define it technically, because IM didn't exist or wasn't popular yet). He was sent to prison but the child was scarred for life.
* Public demands legislative action to prevent this from happening again. Slimy-lawyer politician introduces bill--one that covers only this specific situation. Said slimy-lawyer politician scores big political points as election is nearing.
* Critics contend the bill is not a good law (arguing of course that it is too specific and that it would be better to strengthen existing laws or create a more general law against soliciting minors).
* Slimy lawyer politician scores more political points at the expense of his critics by labelling everyone who is against the law as "supporting child molestation" or "against protecting our children"--whether or not the critics have a point or even a more effective alternative to protect children.
* Slimy lawyer is re-elected because of his track record on "protecting children"
* Slimy-lawyer-firms (friends of slimy-lawyer-politician) make a lot of money defending accused child molesters using technicalities and strict letter-not-spirit interpretation of the bad law. Even if they lose their cases they at least have a lot of billable hours.
* Slimy-lawyer-politician now has ammo to introduce more bad bills to plug holes in his original bad laws and add to his "stellar track record on protecting our children".
I'm not saying that you are wrong in your contention that we can't just fudge with the law to put some slimeball in pris
(IMs==email) && (sheriff's deputies==13 year old girls)?
WTF???
-- Boycott Shell
We're technical types, to us, e-mail means SMTP. But to a non-technical type IM protocols and SMTP protocol both support the same function, transmitting a text message to a specific person. To most people, that is electronic mail.
Judges have to make judgments, given that IM and SMTP are not functionally different (to non-technical types, anyway), and that there is no dispute that the legislature would have explicitly included IM had it thought it would be necessary, this is a reasonable judgement.
The law says the person must only think that the other person is a minor. I'm glad that is the case. I think the law should be amended to specifically include any online communications and not just 'electronic mail'. I have a friend that caught his 13 year old daughter chatting online with an older man. He installed software to watch the packets and read her online conversations. He didn't go into details, but it was sexual. 13 year olds aren't mature enough to handle something like that, and any older man willing to meet with them at a motel should get in trouble with the law. Looks like the guy only got 5 years probation, but hopefully it scared him enough that he won't try something like that again.
Think of the children! Keep them away from the Internet and the World Wide Web. Any parent allowing their chilren to access either should be sent to a re-education camp and the children sent to a warehouse for storage until they mature.
The problem is the judge has overstepped there bounds. The Judge made up there own lay. This judge said the law states blank but I think they where wrong when they wrote it so I am going to pretend it says bland. The law says email. IM is not email. They law should be vauge and simply include all forms of electronic communication. Solicitation is solicitation. Judges should rule based on the written law. If a law is poorly written state that in the ruling give the public a reason to demand a change. We are government based on checks and balances. Legislature makes lawys, judicial enforces. Judicial is not there to make up there own laws in order to enforce what they "think" justice is. We have this balance because we can change the legislature every two years or so. We don't ge to change judges.
The first definition of e-mail at dictionary.com is:
1. a system for sending messages from one individual to another via telecommunications links between computers or terminals.
It sounds like it covers instant messages pretty well.
"To be is to do." --Socrates
"To do is to be." -- Aristotle
"Do-Be-Do-Be-Do..." --Sinatra
to me isn't about whether e-mail in the definition includes instant messaging. I think the real question is if he broke the law considering the sheriff was not a minor and isn't this entrapment?
Either way even if he didn't break the law if he knowingly was trying to solicit sex from a minor that's gross and he should be disciplined in some way.
"To be is to do." --Socrates
"To do is to be." -- Aristotle
"Do-Be-Do-Be-Do..." --Sinatra
This is one of the reasons I thought about turning to a law profession, focusing on technology issues.
As we can see from a few posts already the "you're with us or..." folks the OP indicated, are indeed present. However, as I see it you really do have to look at the greater good.
There is no question in my mind that the dude is scum, I think we'd agree there. However, it is up to the state to put a good case together to convict. There are plenty of laws written where we have to look at the spirit of the law vs the letter of the law. This is a very significant point.
In this case, the defense could have and likely did indicate that IMs are not electronic mail. They would also be entirely correct, or at best they can challenge that the term is vague. Personally I do not believe that the term is entirely vague, but from a legal perspective could use a bit more clarity to be sure we get at what we mean. They could have, and likely should have said "electronic means" which would indeed cover both e-mail and IM. It would also include blogs, phone, whatever.
I do wish the absolutist folks would take a chill pill on these things and see it for what it is. We can't just go around saying "all or nothing" it doesn't work that way. Law doesn't work that way in particular. Justices are indeed there to interpret what the legislature has passed, and so there is some degree of latitude on some things but when we're in this type of deal, they're setting precident, and that means quite a lot in law.
If this scumbag really should not have been convicted on that first charge based on the letter of the law. However, the justice setting precident that email includes IM can be dangerous. The answer should be to the legislature, you need to go re-write this law.
K.
Actually, this is no different from taking "press" in the First Amendment to include radio, TV, and now blogs. Function trumps mechanics. IM is really just a faster, interactive sort of email. The court was right.
And I wouldn't fret the ACLU. It's in the pockets of the porn industry, or at least it was in Washington state back a few years ago, taking buckets of money from them. You don't really think their lawyers are working "pro bono" (for the public good) do you? More likely "pro my-offshore-bank-account."
Interestingly, I once talked to a Washington state legislature who, in his role as committee chairman, was blocking some child porn legislation that would have sailed through if it could have gotten out of his committee. Over and over again, he told me that some powerful group that he wouldn't name had said that the law would "interfere with adult access." This was clearly a group that he dare not cross and could not name. I couldn't help but think "Mafia." The Mafia won't kill you if you do something they don't like. But they will if you take money from them and then don't do as they want.
He clearly was running scared. When the group fighting for the child porn law made it clear that he'd pay in the next election for what he'd done, he decided not to run again. When you toss away a political office, that's really scared.
And those sorts of people are in bed with the ACLU just as surely as Roger Baldwin, founder of the ACLU, was in bed with Stalin's totalitarian USSR in the 1920s. If you doubt that, read his Liberty Under the Soviets. It's an eyeopener. He didn't deny that under Stalin there were no civil liberties. He simply denied that it mattered.
My point was that the ICC was an example of twisting the words of law (or clause) to change its intent. Of course, this example might be better described as the logical dual of that - emphasis on the intent of the law at the expense of the actual words.
I was NOT claiming that the ICC was relevant to this case. Of course, as you mention, since it involves the internet, it might be, but I sincerely doubt any lawyer will bring it up.
Ben Hocking
Need a professional organizer?
The general debate here is whether the Judge crossed a line or not. What worries me more is that police entrapment is becoming common place and accepted. An agent of the sheriff's department, went online to look for someone that would agree to have sex with a minor. The goal was to create a situation that lead to a crime. As I understand it, that is entrapment, and is illegal.
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.
Right, I agree that the general public should know more about law. Then we should talk about how lawyers are all bad people and how we hate them because they're scum. Shakespeare said it best: "The First Thing We Do, Let's Kill All the Lawyers."
Why? Because only scum (including lawyers) could say that it is OK to solicit 13 year olds if there is a loophole.
Why it matters how a criminal communicates with the victim? What is different if it is done via email, IM, chat, IRC, or speak? Is a crime through email different than a crime through personal contact? Let's say that spelling out the word Haha is a crime. Is it different to say Haha while I am talking, writing an email, posting an IM, or sending some text to an IRC chat channel?
They're not making stuff up, but trying to keep up with technology. The extremely specific meaning would be very hard for the legislature to keep up with... So they include IM, what about VoIP? What about MySpace? Slashcode? Slashcode Journal entries? Jabber? (private IM versus public IM?), PHPBB? Blogs? Web 2.0 AJAX tools like WebFroot Shoutbox??? Hell, under strict terms you all define even Hotmail could be made not to count... after all if both users are Hotmail users, and they log in via the HTTP site on Port 80 does their interaction qualify as "email" because it won't ever travel over SMTP as it's all on the same server!!!! Well come on, which is it? Are we going to have judges split technical hairs all day.. or will we just call "electronic mail" any kind of "electronic message"... as a side note, even Microsoft and the SEC are leaning toward classifying their rules and technologies as "electronic messaging" for much the same reason.. things like the Martha Steward case where they got into the same discovery rules over whether info was Faxed, emailed, IMed, etc to be considered inside trading.
I find it surprising that an average Sherrif's Deputy can actually go through as an average 13 year old girl, carrying on long conversations, and not be suspiciously or obviously mature.
Custom electronics and digital signage for your business: www.evcircuits.com
In this case, as well as the one you stated, Expost Facto certainly applies. Expost facto being latin for "After the fact". In the United States, you cannot arrest someone for breaking a law, then change the law to include them.
You can now! Well, you shouldn't be able to, but it was done. Nevertheless ex post facto has zero to do with this case or the parent's suggestions.
If they have even halfway decent attornies, they should realise that their convictions are null-in-void. The situation you named follows the same standard. Cant arrest someone for something that isn't yet in the books, or go back and arrest them after the fact, as it was legal then.
First off, it's "null and void." There's a reason we choose the words we use in phrases. It's not to remind people of the sound they heard on the TV the last time some sitcom character used it. In any case, what are you talking about? The fact someone was convicted illegally does not automagically void their conviction. The conviction stands unless a defendant's appeal succeeds in proving to a court that the conviction was unlawful. None of this has to do with ex post facto. Ex post facto is a limitation on the powers of the legislative branch. It means "after the fact" as you said, and it does mean that you cannot apply a law passed in the future to actions taken in the past, but that is not what was done here. The law in question was on the books when the defendant committed his crime. No new law was passed. The judges interpreted the law as one intended to outlaw the actions taken by the defendant. If you have issue with their ruling that is one thing (I happen not to since the ruling reads as being on the up and up), but ex post facto this is most certainly not.
And to be clear, IANAL
You have made that abundantly clear. No one should mistake me for a lawyer either.
Using this precedent, businesses have no excuse for not recording all IM traffic going through their network. Most still don't.
I'd be curious to see how many days it takes until some companies and/or the government uses this to their advantage. My bet would be 14.
"e-mail" wasn't stated in the law. The law said "electronic mail". /. usually call "e-mails"
Which could be considered as an expanded notation of "e-mail". Which will encompass only what
Or could be considered as the juxtaposition of "electronic" simply meaning something done using electronic machines and "mail" meaning exchange of communication in written form. Which could encompass e-mails, SMS, IM, blogs, personnal messages in forums, etc. Pretty much every communication on Internet except VoIP and Video Chat. And was how the judge choose to interpret the law (because the law failed to explain how to interpret the terms).
Also note that the deffinition of the Oxford Dictionary is vague, and the deffinition of "messages exchanged electronically between two computer" is also a far reaching definition that goes beyond what is usually called a "message" nowadays.
"Sufficiently advanced satire is indistinguishable from reality." - [Tips: 1DrYakQDKCQ6y52z6QbnkxHXAocMZJE61o ]
Why is the exact same act, under the same circumstances, but over a slightly different transmission medium subject to stiffer penalties?
Because some mediums make it easier to commit the crime than others, some mediums result in greater harm to victims, and some mediums result in more victims being affected.
You have a stiffer penalty for soliciting minors via the internet because it's easier to solicit a minor on the computer than it is to walk up to them and solicit them when they leave school. Because the internet makes soliciting minors much easier, you want stiffer penalties to discourage criminals from using the new, easier method.
A corallary would be armed robbery. If you steal $20 by going into a convenience store and pulling $20 out of the register when the clerk isn't looking, that's not nearly as bad as walking in with a gun and demanding and taking the $20. The end result is the same - the convenience store is short $20 - but the penalties are very different, and for very good reason.
paintball
You're just getting hung up on the idea of "OK." Atlantis-Rising probably doesn't think that hypothetical loophole makes soliciting 13-year-olds morally justified--he thinks, rightly, that the loophole makes it not illegal. The difference is vast, and it is what makes the legal system our main defense against the tyranny of the majority, instead of its main instrument against us.
(Captcha? "Teenage")
First, ignore the fact that it was an attempted solicitation of a minor. That's irrelevant to the issue.
It would seem to make intuitive sense that intensionally, IM is an electronic communication which is within the intentions of the legislators (sorry to slip into the language of formal logic here -- as we see below it hardly has a place in the law).
The problem is that the courts have not followed that same approach in other "obvious" cases. For example the fourth amendment to the US constitution seems clear in that people and their homes, cars, possessions and the like shouldn't be messed without a probable cause and warrant. But the courts have consistently chipped away at this (scanning your house via IR, looking into cars, seizure without a warrant, etc) by interpreting what the constitution says literally. If you accept that, you cannot accept this otherwise sensible judgement.
But he didn't actually solicit a minor. He solicited a law enforcement officer POSING as a minor which is NOT the same thing. Entrapment?
Libertas in infinitum
I'm quite familiar with the workings on email and I too have written email clients that connect directly to SMTP listeners.
However for you to suggest that a direct connection from sender to recipient is the norm then i'd say you were the ignorant one. In fact if you actually try to do that on a regular basis then you'll quickly encounter ISPs who block outbound port 25, spam filters that consider email directly from broadband hosts to be less reliable, problems implementing SenderKeys etc...
I've worked in several entirely *nix environments and every one of them has used a combination of SMTP and IMAP to handle email.
The simple counter to your argument is that their are IM clients where the messages travel directly from client to client without travelling between servers; so once again there's no real difference between the two.
Although this is not from the same statute, it is from a Florida statute. IMs would be covered under this definition. Similar definitions exist for all important terms in all statutes. Not doing so just opens up the law to be challenged. The definition must be narrow enough to confine the scope of the law, yet broad enough to prevent the law from becoming obsolete.
Unfortunately, electronic mail isn't specifically defined in the statute of interest (which if I'm correct is chapter 847 under Florida's criminal code), but do not fret, as transmit is.
(1) For purposes of this section:
(a) "Minor" means any person less than 18 years of age.
(b) "Transmit" means the act of sending and causing to be delivered any image, information, or data from one or more persons or places to one or more other persons or places over or through any medium, including the Internet, by use of any electronic equipment or device.
and instant messaging is definitely covered by this.
In any case, if I have failed to find the proper laws, I'm sure that proper definitions are included in that law. Not doing so would be to open up the rulings to such cases as mentioned in the article. It's also important to note that the scope of the definition. In this case, the scope could be the entire statute, one chapter, or just one section. The definition cannot be transfered to another statute unless it is reasonable to do so, and then still the courts usually won't be able to act on it. Unless there are a bunch of statutes out there that don't define e-mail (and I highly doubt that there are), then it is at the judges discretion.
There are some other complexities here that I won't bother going into, but that's the gist of it.
ScuttleMonkey, you could split frog's hair. :-) I infer that you agree with J. Edgar Hoover, who wrote, "Justice is incidental to Law and Order." Instead of quibbling over the legal distinction between e-mail and IM, we should be discussing the much larger issue of piling on multiple charges for one criminal act. This guy was nailed with luring a minor via the Internet. He should not also be tagged with luring a child via e-mail. It is commonplace to pile on charges that basically say the same thing even when the Internet is not involved. It is also common to charge someone with conspiracy - a felony - to commit a mere misdemeanor. This is all bullshit that should not be tolerated. One crime, one charge.
A person has the god-damned right to look up "Is this illegal." Not "what would the reverend phelps say," not "would some bureaucratic official get pissy"...
The minute one cannot get an absolute yes-or-no answer simply by reading the law, one has abandoned the rule of law for abject tyranny, with no recourse to law whatsoever.
Does it produce undesireable results sometimes? Sure!
So... it is your intent, then, to support the sexual assault of minors by non-pedophiles?
Before you (or another) tries to argue that it isn't possible, look up a definition... let alone orientation/assault demographics on the subject...
If your sentence was codified into law, the "spirit" or "intent" would appear to be to adress the status of persons, and not specific actions. This would, quite immediately, lead to "I'm not a pedophile, I'm just some guy who raped a kid" as a fully legal defense to a law drafted on that statement.
In my book, that's probably not a good thing. IMO, you handed up an ideal example of why precision is good - and intent is bad... because your stated intent was to attack queers, rather than outlaw solicitation, and that's a giant free pass to walk through should it ever become law.
That said?
Mostly, in past messages, because people didn't look up the highly-flawed definition of email, which led to the strong appearance of the judge throwing out the rule of law - which is bad, period.
A much, much, MUCH more interesting reason for it to be controversial, IMO, is that it makes being assigned the the IP 70.85.67.75 - as well as several hundred others - a criminal offense, which is a hint as to where, how, and why the original definition is fundamentally flawed in a legal, not a technical, sense.
Have fun figuring out why *that's* the law as written - but it is.
However, if you don't mind, I think I see one little flaw in your argumentation...
See...
He can still be prosecuted for soliciting sex with a minor if he solicited sex with a minor.
Now, Florida has a whacky definition of email which includes unseen contents in the packet header, among several other problems, which makes this a little bit more legal than it should be...
Were that not the case, however - I'd consider "he cannot be prosecuted for using email because he didn't use email" to be extremely vital to the legal system, myself. It's sort of like "menacing with a firearm without a firearm," or "murder without killing anybody," or the like.
I suppose what you're overlooking (with respect to the ICC) is that this clause was used to apply federal law to *private* companies and not states. Laws were written that required private companies to serve minorities, etc., and for most of these, the consitution (10th amendment) is quite clear that it is the state's position to make such laws. Again, I want to stress that I fully support the intent of these laws, but I don't understand how one can argue with a straight face that they're actually constitutional.
The 14th amendment required that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States", but it did not require the completion of this sentiment - i.e., that states actively PASS laws which prevent others from abridging "the privileges or immunities of citizens of the United States".
"Whites Only" signs were, for the most part, at places of business. Constitutionally, it is the state's responsibilities to pass laws telling those businesses to ship up. You want a more creative solution - how about what the federal government did to get all states to raise the drinking age to 21? That one at least seems constitutional to me.
(I don't disagree at all about Dred Scott being a bad decision, but the Dred Scott case stated that Dred Scott was still a slave even when his "master" traveled with him through free states. I've just reviewed the Dred Scott case - very quickly, mind you - and don't find reference to a 2/5 (or 3/5) person. Of course, IANAL.)
Ben Hocking
Need a professional organizer?
(7) "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.
That pretty much defines an IM. So as far as the legislatures went, they did a good job. With this definition, SMS, IM, faxes, SKYPE, video-teleconferencing, and E-Mail are all covered, along with pretty much any other form of digital communication. Heck it even covers converting the msg to a JPG & sending it with no ASCII text.
My problem with the use of the ICC was that it basically granted Congress the right to pass legislations about your company if you got even one product (e.g., paper napkins) from across state lines. Since virtually all companies got at least something from across state lines at that point (and from then on, of course), it basically gave Congress a way to subvert the 10th amendment. Again, I feel I must stress that I have _no_ problem with what they were wanting to accomplish, it just seems that it opened a floodgate through with possible abuses could flow later.
Here's an excerpt from the Wikipedia article that partially describes what I'm referring to:
A more careful reading of that article (by me) made me realize that the start of the abuse of the ICC was evidently begun during the New Deal era:I suppose there's some irony (historical, at least) in the fact that I'm an ardent supporter of civil rights and yet also a strong believer in states' rights.
Ben Hocking
Need a professional organizer?
I couldn't tell for sure whether you are being facetious/cynical, but I'm going to assume that you're not. A lot of things that are "necessary and proper" don't happen or are subverted due to greater evils. During (and prior to) the civil rights era many southern states were quite content to actively discriminate against minorities (although the 14th amendment does prevent most of that), and to passively allow their citizens to do the same. Unfortunately, the constitution does not prevent the latter from happening - at least not due to the ICC. I wouldn't have any problem if the courts found some way to apply the "life, liberty, and pursuit of happiness" phrase of the Declaration of Independence (although that's not the constitution), but the ICC clause is so *reaching* and has such wide-spread consequence.
Basically, I don't always trust our government to always know what is "necessary and proper", even though they got this one right.
Ben Hocking
Need a professional organizer?
The law, as I skimmed it, specifically indicates that it is required to be targeted. You have to solicit a specific individual, blogging is broadcasting. It also never says e-mail. It's always 'electronic mail messages or files.' If people want to interpret that as email, that's fine, but it's broader than that - the way it's worded SMS, IM, and faxes also are covered.
In both of these incidents, however, neither the bank nor the person with the cutout were performing actions that lured you into committing an (actual or derived) crime.
In the case of the deputy, part of the issue of entrapment may lay around the behavior of the "bait." Was said bait behaving in a lewd and enticing manner. Was she actively trolling for people to solicit her?
I read a case recently where a motorist in Vancouver (BC, Canada) was ticketed for failure to stop for a pedestrian at a crosswalk. In this case, it was night, it was an unlit crosswalk, and there was an officer in very dark clothing loitering around the crosswalk but not obviously intending to cross it.
I certainly can't support the actions on the accused, but I wonder to what extend law enforcement will go to entice individuals to commit a crime without them being hit with a flurry of entrapment charges. Unfortunately it's a legal muddle. Perhaps such actions could be allowed for the purpose of securing papers to further investigate an individual (to see if he/she is actual trying to commit a true crime against a real person), but not as a grounds for conviction on their own?
"So in other words, if you find some loophole in the law, it is OK to solicit 13 year olds?"
This is something I've never understood -- why is it even necessary to create a law like this? Is it somehow more illegal to solicit a minor over IM than it is in person?
Do we need a separate set of laws saying that it's illegal to solicit a minor in Spanish, German, etc.?
If I create a new device (say a grav gun like in half-life 2) and use it to kill people, is it not just as much murder as using a gun or a knife?
Or would I somehow get off because the law doesn't specifically count grav guns?
Minority Report, here we come.
As disgusting as what the perpetrator wanted, he committed no crime. He simply THOUGHT he was committing a crime. Had he solicited a 13 year-old for sex, then there would have been an offence, but he solicited a MALE SHERIFF'S DEPUTY.
I understand that the world is a better place without this guy, but what are we coming to when we are convicted for what we THINK we are doing? What's next, fake 7-11s looking for robbers?