Florida Judge Upholds Conviction By Defining "Email" To Include IMs

Bennett Haselton writes "The Florida Supreme Court has upheld the conviction of Michael Simmons, who sexually a solicited a 13-year-old girl (really a sheriff's deputy) via instant messages. What was unusual about this case was that he was convicted under a Florida 'harmful to minors' law that was specifically written to cover only e-mail."

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?"

Comments

The actual law has nothing to do with email

[MikeRT]

(3) CERTAIN USES OF COMPUTER SERVICES PROHIBITED.--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.

Additionally, the court ruling states:

This case involves the prosecution of Michael John Simmons for luring or enticing a child by use of an online service in violation of section 847.0135, Florida Statutes (2002),

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.

Florida definition of 'electronc mail'

[fishybell]

Well, I couldn't the exact law that the article is talking about, but most Florida laws regarding e-mail state the definition as "Electronic mail message" has the same meaning as provided in s. 668.602.

Here's the definition in 668.602:

"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 hardcopy format after receipt, viewed upon transmission, or stored for later retrieval.

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.