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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?"
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.
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".
In particular, is there some reason to think that the *legal* definition of "electronic mail" perfectly coincides with the common usage of "email"? I would not assume so. The fact that SMS and IM are not called "email" is simply a marketing decision. Let's say google optimized gmail so that one gmail user sending an email to another gmail user never uses SMTP. Is it still email? I would say, "sure." If the law made reference to SMTP, POP, etc, then there would clearly be a distinction... and it would have been silly to write the law that way.