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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?"
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.
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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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
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.
The statute states:
Any person who knowingly utilizes a computer on-line service, Internet service, or local bulletin board service to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child or another person believed by the person to be a child, to commit any illegal act described in chapter 794, relating to sexual battery; chapter 800, relating to lewdness and indecent exposure; or chapter 827, relating to child abuse, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
This guy doesn't become guilty when he molests the child, the crime is that he attempts to seduce one whom he believes to be a minor. He can think about naked kids all he wants, but he becomes liable at the exact moment he takes an overt act in furtherance of his goal.
"If you think you have things under control, you're not going fast enough." --Mario Andretti
Comment removed based on user account deletion
The laws have been written in specific contexts this way for centuries. It's nothing new.
In my state, the crime is still a crime (soliciting sex from a minor), but there are additional penalties assessed if the crime occurs over Internet. The crime by itself is punishable by a maximum sentence of 4 years in prison and/or a fine of up to $4,000; do it on the Net and it becomes a crime punishable by a maximum sentence of 10 years and/or a fine of up to $10,000.
Big difference.
The Florida statute is probably similar. The crime is still a crime, and the guy goes to jail regardless of whether we call it e-mail or instant messaging. It's just that if they get to call IMs 'e-mail,' then the stiffer penalty kicks.
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Slate article on foreign law in opinions.
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
That actually wasn't the statute in question, but it reads similarly. The crime was sending offensive materials, to a person he believed was a minor. As far as the statute goes, sure, it certainly looks like he is guilty. I personally think this is very bad law. In reality the guy sent dirty pictures to an adult and harmed no one. If they have evidence that he did in fact send such materials to an actual minor - fine - I am all for some sort of punishment for this behavior.
Punishing people who have not in fact been proven to have harmed anyone, because they have thoughts that appear to show the intent to harm, is thought crime.
Actually, the stronger issue is that companies are required to maintain e-mail records for X number of years - in case of court cases, audits, etc. This ruling now makes companies accountable for maintaining IM traffic (and possibly other similar data) as well. THAT will be of grave issue.
That's a misunderstanding both of how the system works and of the ruling itself. First off, this ruling only applies to Florida. Second the only thing that was decided here was that the anti-solicitation law passed in Florida applies to email and the defendant was granted due process. This has no bearing on the laws regarding archival (although I wonder why you call it such an issue since all corporate IM servers support logging and archival and implementing that on other protocols is routine and trivial).
It would be a real stretch to apply this case as precedent for the purpose of proving that the laws regarding archiving electronic communication apply to IMs because most of the tests that generated this ruling would not apply to such a case. To wit, whereas it is clear that the defendant should reasonably have understood that propositioning a 13 year old girl over the internet was illegal, it is far less clear that a corporation should think that the lack of archival of chat traffic runs afoul of the law. (Though, again, it seems just to be common sense that they should do it without a law. If a form of communication is important to your business you should keep records. That's why I log all of my chat conversations and keep all of my emails. )
Likewise this ruling depended on the interpretation of the intent of the legislature in passing the law. I don't think this case is useful precedent in proving that laws requiring businesses to archive communication apply to IM traffic. Some of the precedent cited here might, but the case doesn't apply to that law in particular. In any case it won't automatically happen. Someone with a case or controversy pertaining to the archival laws must come before the court and argue that they were meant to apply to IMs. Then they have to win and that ruling has to be upheld. Until that happens or the law is changed there is no reason for fear. IANAL.