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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?
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".
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/
This only goes to show how stupid an futile it is to create special laws for the Internet. Solicitation of minors, or any other communication, is just that, no matter what medium is used to convey it.
I hear there's rumors on the Slashdots
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.
The judge probably did the right thing. The man was still attempting to socillicit from an underage girl over the internet, who cares excatly which communications protocol was used?
I do. If you take the time to look up the millions of obscure laws written half in Latin, the least you should be able to expect is that the law be enforced as written. This guy was already guilty of violating a different law and their was no reason why another "on the internet" law should have been applied.
The difference is between living in a state where people are ruled by laws and living in one where people arbitrarily enforce their beliefs upon you. Just because you agree with the beliefs in this case does not make it any less wrong. Two wrongs don't make a right, and that is exactly what is being done here.
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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I agree with you that the judge was "clever" to misinterpret the law to catch a scumbag.
However... this is from the post right above yours:
Actually, the stronger issue is that companies are required to maintain e-mail records for X number of years - in case of court cases, audits, etc. This ruling now makes companies accountable for maintaining IM traffic (and possibly other similar data) as well. THAT will be of grave issue.
The rule of unintended consequences is in full effect. For example, in my great state of texas, the DA has "misinterpreted" the law so that people with crackpipes are felons instead of misdemeanors (sp). The end result is a $59 *million* dollar a year bill for incarcerating them- an estimated $250 *million* dollar bill for new prisons because the misinterpretation means we have a lot more felons than we used to. An entire *class* of minor criminals who will now basically be *forced* into lives of crime since as convicted felons they are going to find it very hard to find work and they will be well "educated" while in prison by the hard core felons.
The United States currently incarcerates people at a higher rate than soviet russia did. Most of it over drug issues and a growing number over sex offenses.
The problem is that as we are getting better and better at tracking and detecting crimes- it's becoming clear that *MANY* people engage in criminal activity in their teens and twenties- they just used to get away with it or it was put down as youthful hijinks.
She was like chocolate when she drank... semi-sweet at first and then increasingly bitter.
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
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?
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
How can we continue to believe in a just universe and freedom to eat crackers if we have no ale?
So what? the police should have allowed him to nail a 13 year old first to make it a real crime?
This is the problem with lawyers, they try to make obvious things complicated. he was clearly trying to get with a 13 year old, there is no question about that.
The person attempted to commit a crime, he tried to get with a 13 year old (but he was a sherrif)
The person attempted to commit a crime, he tried to get with a prostitute (but she was a cop)
The person attempted to commit a crime, he tried to buy drugs (but they werent real drugs)
The phrase "more better" is acceptable English. suck it grammar Nazis
Comment removed based on user account deletion
Sometimes this leads to less than desirable side effects.
It's a statistical fact that the more sensitive you make the test, the more false positives you get. People are more touchy nowadays (compared to ancient Greece, for example), so you get quite a few cases of normal behavior labeled as inappropriate nowadays. Unfortunately such a mistake absolutely ruins someone's life - can you imagine having to live as a "sex offender"? We have to ask ourselves how far this is going to go.
Seven puppies were harmed during the making of this post.
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!
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.
Dude, jurisprudence is a fundamental part of law. No matter what a judge does, she is forced to apply an interpretation of the law. This is absolutely unavoidable. In this case, the judge decided that the law intended to cover IM as well as emails, and I think that is a perfectly reasonable decision to say that the intent of the law was to cover instant messages as well as email. Laws cannot be perfectly specific.
... beliefs on you". Hell, for all that says, laws are arbitrarily forcing beliefs on you just as much as that judge was.
The difference is between living in a state where people are ruled by laws and living in one where people arbitrarily enforce their beliefs upon you. Just because you agree with the beliefs in this case does not make it any less wrong. Two wrongs don't make a right, and that is exactly what is being done here.
No. No matter what society you live in, laws are interpreted, and that does not mean "arbitrarily enforcing
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?
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 problem with this is that tech changes waaaay too quickly to try and be specific in every law.
I see very little need for tech specific laws. The laws are supposed to be arbitrating conflicting rights. In principal, adding technology to the equation does little or nothing.
I mean, you're the same guy who, in 5 years will be saying, "Hey the law only covers IM, Email, Blog posts and VOIP...It doesn't say anything about holo-chat rooms!"
We already have a law that says it's illegal to solicit a minor for sexual acts. Why do we need one to add another penalty if it is done on e-mail, IM phone, messages on rocks, or mental telepathy?
Forcing the law down to a super nit-picky technical medium is ripe for setting up a huge number of bad precidents.
Agreed, which is why laws should be about actions, not the means by which those actions are completed. I victim is just as dead whether they're killed with a rock, a firearm, or a disintegrator ray. That is why the law should ban murder not killings with rocks or firearms or disintegrator rays.
Yes I do. If it is is unethical to knowingly solicit a minor, then it is unethical to do so via any medium and there is no reason for mediums to be specified in law. The only reason these unnecessary laws are passed is to garner votes from morons. "Look how tough governor Smith is on cyber-criminals. Now they are convicted of two crimes for each act and serve twice the sentence instead of one." It is idiotic and needs to stop.
This is exactly the reason that people hate lawyers.
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
(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
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.
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
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
So you mean he committed a THOUGHT CRIME?
How do you know his fetish isn't 40 something cops pretending to be little girls?
Not a Twitter sockpuppet... but I wish I was.
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. ...
;-)
...
From this, I'd conclude that you understand little of email in general, and completely misunderstand SMTP.
The RFCs that define SMTP don't talk about email servers. The primary intended implementation would attempt first to make a direct TCP link to the recipient machine, and if successful, the message would go directly from source to destination machine with no intermediate "server" machines.
The primary reason that email servers exist is that Microsoft's DOS systems at first couldn't do direct TCP connections to each other, because they couldn't run a background task to listen on an IP port. Or even if they could, the machines usually had only a modem internet connection, so most of they time they weren't connected to the internet at all, and attempting to connect to them would fail. So the server approach was added to SMTP to accommodate machines with such intermittent network connections.
Even now that many home users have always-on internet connections, there are still many who don't, so the server system is kept alive. And ISPs do like it, because storing all messages on their server lets them do commercially-useful things like scanning the messages for keywords, for use in targeted advertising campaigns. (And it also means that they can comply with government access requirements if necessary.)
But the idea that email always works by bouncing messages off servers is flat wrong. I routinely run a number of email agents (some of which I wrote myself as tools to diagnose network problems) that deliver email by connecting directly to the machine in the address, and hunt around for servers if that fails. If I were to send you a message from the machines that I work on most, you'd see only one "Received:" line in the headers, indicating that it reached you in one hop with no intermediate servers involved. Unless you're on a Microsoft system, of course, in which case you're still probably not running an SMTP listener, so my machines can't connect to your port 25. (People knowledgable in SMTP will now explain why you still might see only one "Received:" line.
I'd go into more detail, but I can hear the readers falling asleep already
Those who do study history are doomed to stand helplessly by while everyone else repeats it.
Email goes to your inbox -- you don't have to read it right away, or even be logged in.
And if a chat program had a feature that people could send you messages without you being logged in, then I would say that did, in fact, count as an email program.
(-1: Post disagrees with my already-settled worldview) is not a valid mod option.
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.