Guy Loses Probation Because Court Decides That Facebook & MySpace Are 'Electronic Bulletin Boards'
from the definitions-matter dept
No link on this one because the decision isn't "published" and isn't online, but a court in Arizona has revoked the probation on a guy and sent him to jail for ten years, based on a debate over the classification of social networking sites Facebook and MySpace. Now, we should be clear upfront that the guy in question, William Hall, was convicted of some pretty seriously disturbing crimes and, as such, I have no problem whatsoever with him getting whatever punishment the courts decide is within the law. Specifically, the ruling notes that in October of 2010, "Hall was convicted of attempted sexual exploitation of a minor under the age of fifteen, a class three felony, and surreptitious photographing, a class five felony." This post in no way defends Hall. My interest is just in the specific legal reasoning behind the revocation of the probation. Part of the probation was that he was limited in how he could use a computer. The court didn't completely ban internet usage or computer usage (something we've argued is overkill), especially noting that he made his living doing web design. However, it did bar him from visiting specific sites. At issue was guideline #13 in his probation agreement, which says:I will not use an electronic bulletin board system, Internet relay chat channel, DCC chat channel, instant messaging, newsgroup, user group, peer to peer (e.g.Napster, Gnutella, Freenet, etc).However, the court (and the probation officer) argued that he violated this section because of his use of Facebook and MySpace. Hall notes that he used those sites to further his web design business and that he specifically told his probation officer that he was going to use those sites and was told that Facebook was fine and that it wouldn't be blocked. There seems to be some dispute over this, as the probation officer says that he believed that Facebook counted under the Guideline listed above. During the trial, there was the following exchange with the "surveillance officer" being the "S.O.":
Q: Can you show me where on [the Guidelines] [Hall] is not allowed to use social networking sites?Again, Hall has been convicted of a very serious crime, and there were a few other parts of the case that raise other questions (he moved without informing the probation officer properly, he was supposed to only have one computer but didn't get rid of his second computer, later on access to Facebook was blocked but he still tried to go there...). It may very well be that he deserves to be in jail. But, for whatever reason, the court first granted him probation, and if we're going to do that, then the rules for probation should be clear. If they didn't want him going to social networking sites, they should have been explicit that this included social networking sites. It wasn't like this happened in the early days of Facebook. He was convicted at the end of 2010. Facebook was huge (and MySpace had already grown and declined). The probation rules list out other specific names. It's ridiculous that they didn't simply add "social networking" or the specific names of Facebook and MySpace if they really wanted to forbid him from going to those sites. Either way, the lower court and now the appeals court (Arizona state courts) have both decided that Facebook and MySpace are covered by Guideline #13 despite the unclear language. At the very least, one hopes that Arizona will update its guidelines for the sake of clarity.
S.O.: Yes, No. 13. I will not use any electronic bulletin board system[s] and social networking [is] underneath bulletin board system[s] because [users] can post comments and that's what a bulletin board system is.
Q: The end of paragraph 13 it gives examples of Napster, Gnutella, Freenet. Does not say Facebook, does it?
S.O.: It is so broad. There [are] thousands and thousands.
Q: Everybody knows Facebook. It doesn't say Facebook, does it?
S.O.: This is a little older. It-but it's a category of bulletin board systems which is what all networking systems are.
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Filed Under: probation, william hall
Companies: facebook, myspace
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Yes, because the economy is so good now, I would think a felon (or ex-) would have no trouble getting hired someplace. If he can run a successful web design business, he should be allowed to.
This is just a tiny portion of the real disagreement. Is the justice system about punishment, or about protecting society?
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Both?
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It IS a good enough excuse that the court accepted his use of a computer and the internet based upon it.
Why do you want to be more vindictive against this guy than the court thought appropriate?
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I tend to have issues with an "unclear" wording being the difference between 10 years in jail and not being in jail. That's my concern here.
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Was the decision really based solely...
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If he didn't violate the specific letter of the ruling, he clearly violated the intent. Arguing that his access of Facebook is anything more than exploiting an unfortunate loophole is nothing more than smug. The court's ruling was appropriate.
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If not and he's honestly only using it for web design business, then they should look the other way.
Either way, the guideline should have been that he would not initiate or respond to contact with a minor online in any way. There's no point in making vague lists when you can be perfectly clear.
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"As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Hoffman Estates v. Flipside, Hoffman Estates, Inc., supra; Smith v. Goguen, 415 U. S. 566 (1974); Grayned v. City of Rockford, 408 U.S. 104 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Connally v. General Construction Co., 269 U.S. 385 (1926). Although the doctrine focuses both on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of the vagueness doctrine 'is not actual notice, but the other principal element of the doctrine — the requirement that a legislature establish minimal guidelines to govern law enforcement.' Smith, 415 U.S., at 574. Where the legislature fails to provide such minimal guidelines, a criminal statute may permit 'a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.'"
Kolender v. Lawson, 461 US 352, 357-58 (1983)
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Actually, even worse, as we all were AC's of some sort of another back then. Facebook, not so much.
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But that is any website almost. Any blog, this site, any news site, any shopping site with reviews, ect ect. The ruling is then basically "you can only use the places on the internet where the public does not communicate" which is 99.9% of the internet.
That makes about as much sense as "you can use any sidewalk people do not walk on," or "you can use the phone but not to call any number outside of your house."
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Probably MORE like a Bulletin Board...
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Not likely. They've already been told by the court that they don't need to.
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Both have IM capabilities
His agreement states that he wouldn't use any instant messaging system, which Facebook has had since February 2010. Whether or not he used that system or stayed logged out of it isn't in the details of the story.
Beyond that, even if he did have a conversation with his PO about using Facebook he likely didn't get it in writing, which is the wrong way to go about any dealings with the law.
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"No electronic bulletin boards" essentially excludes most of the internet.
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You do raise a good point though, it would have been tough for him to consider shopping on Amazon since they allow comments on the products and replies to comments.
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It's Arizona. They're so ass-backwards even North and South Dakota is more modern than they are.
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There's no doubt we're more modern than Arizona.
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Why do you think I can say that without any problem? :p
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Also, he was likely banned from using services like IRC chat and BBSes because of his felonies of sexual exploiting of a minor, as IRC and BBSs (Including Facebook) are prime hunting grounds for predators.
It would be like a judge saying that a pedophile can not go near schools, parks, arcades, or recreation centers because of the gathering of minors. Then have the pedophile claim that hanging around a daycare center wasn't specified.
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1) You don't even have a link to an accredit publishing source for this kind of information. No court brief, nothing.
2) You don't even have a solid opinion on this.
"Again, Hall has been convicted of a very serious crime, and there were a few other parts of the case that raise other questions (he moved without informing the probation officer properly, he was supposed to only have one computer but didn't get rid of his second computer, later on access to Facebook was blocked but he still tried to go there...)."
That statement shows that you yourself are skeptical of the probation claim.
You should really just stop writing articles that make yourself look like an idiot, Mike. Sorry, but this was a terrible article to publish.
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2)My interest is just in the specific legal reasoning behind the revocation of the probation.
Do you guys even read the articles anymore?
You should really just stop writing comments that make yourself look like an idiot.
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Wait, does my asking mean that I'm an idiot?
We can see that since you have formed an opinion without ever asking for insight, you are not an idiot.
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Oh, so you watch Fox news...
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...which is explicitly noted in the very first sentence of the article.
You have a well chosen name, I believe...
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a rose by any other name
A Bulletin Board System, or BBS, is an online service based on microcomputers running appropriate software. Once logged in, users can upload and download software and data, read news and bulletins, and exchange messages with other users either through email or in public message boards. Many BBSes also offer on-line games, in which users can compete with each other, and BBSes with multiple phone lines often provide chat rooms, allowing users to interact with each other more instantaneously.
now you called facebook and myspace "social media". so you think that because some clever social scientist relabeled the bbs as social media, that somehow this guy should be given additional consideration.
when you are convicted of a crime like this any kind of anonymous communication should off your list for quite some time (which is how the order was worded). these guys are very persistent and clever and will take advantage of any loophole. i'm sorry he cannot network his business using fb and myspace, but that's the price you pay. he was lucky to have the light punishment that he had. now he will server some hard time for trying to game the system.
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I don't know of anyone that goes to Facebook to look for a web developer. There are professional social networking sites like LinkedIn that would be much more appropriate for promoting yourself for these purposes.
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Oh. wait. that's the effing point.
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And if there were ever a bunch...
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Totaly off topic
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Oh and no, your personal opinion doesn't count. You just demand evidence that people are paying customers, disappear when it's provided and return to the next thread to make false allegations against them again there. You're hardly a good judge of anything.
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(he moved without informing the probation officer properly, he was supposed to only have one computer but didn't get rid of his second computer, later on access to Facebook was blocked but he still tried to go there...)
That kind of stuff there, that's more than enough reason to come down all the harder on him, and keep him in for a good ten years. I normally agree with your assessments, Mike, but in this case - especially given the fact that he moved without informing and got on FB again after being specifically told not to - it's pretty damned cut and dry against the dude.
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First I'll agree that FaceBook qualifies as a BBS but if indeed he asked his PO beforehand and was given the OK then that should be taken into account. If they initially gave him the ok on it then determined it wasn't ok, did they directly inform him of the fact that the permission was rescinded or did they simply block him from access and not tell him. If they simply blocked him and he was unaware of this, attempts to troubleshoot an apparent issue could easily be misinterpreted as a willful attempt to circumvent a the block in direct violation of his terms. If he was going to do that, why would he have asked his PO in the first place? Like I said, we simply do not know enough of the details here to determine if he was treated fairly or not.
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Too Bothersome
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The line of questioning seems to be in error whereas the examples listed are for peer to peer networks, specific to the one item, not examples of all the banned forms of internet communications listed.
The issue I would say would be Hall's claim that the S.O. approved his usage of Facebook. Should have got that in writing. The accused never win a he said/she said with a cop.
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I was arrested and sentenced to Fed Prison for Cocaine in 1987.I am also a long time Rock Artist who has played in bands as a hobby,ETC since summer 1972.
When I was released from Prison I had to sign a paper or go back to Jail.They said as a condition "You will not seek Employment in the Music Industry".
I think you know what I did about that one !!!
I am still playing in bands.
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Fuzzy legal language
But lawyers are the world's worst writers, and the legal system is rife with arcane language that even lawyers can't agree with each other on what some of it means.
In this instance, instead of listing places he couldn't go, the order should have been written to say what specific activities the court didn't want him to do on the Internet. For example, instead of saying he couldn't use file sharing software, say instead he's not allowed to download or upload kiddie porn! That's pretty clear. Instead of saying he can't use IRC, say instead that he's prohibited from contacting anyone under the age of 18! (That would allow him to have a Facebook page, but not go trolling for teenage girls. Likewise with the prohibition from using newsgroups, tell him he can read the technical ones, but he has to stay out of the porn ones.
He went to jail for very specific reasons, his probation should have specific activities he can and can't do on the Internet. There just shouldn't be vague wording that can be interpreted in different ways.
I agree with some of the comments here that if you're trying to keep him off Websites with BBS functionality, well, that's most of the Internet these days, including this Website!
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Response to: Digital Consumer on Apr 5th, 2012 @ 1:22pm
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Facebook is a bulletin board
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Can someone explain the details on this please? Because as written, it sounds like you're committing a felony if you take a photo without being obvious about it. Does it have to involve kids? If so, how many photos do you have to take before it becomes a crime? Can you be arrested for snapping a photo of a building just as a group of kids happens to walk by? Do you have to stand up an declare "I'M TAKING PHOTOGRAPHS!" to all in the general vicinity?
Frankly, this sounds like one of those "I'll know it when I see it" situations.
I'm not defending the guy, just wondering how vague the law actually is.
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The photo - a photo of his wife & daughter at a park. Some female (aged about 16 or 17) was in the background (fully clothed) of the photo and reported him to the police. The police told him that everyone appearing in the photo must give their consent.
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Restriction Was Against Posting & Interacting On The Web
Independent of whether the ruling makes sense or not, considering the stringent probation restrictions, using Facebook without written permission was foolish or an attempt to skirt the law.
That said, the text from the probation report taken from the perspective of this man's case, clearly attempt to regulate his ability to attract and interact with minors.
Visiting Facebook, or any other website was not a violation of his probation. Posting on those sites is the violation.
While this may seem like a ridiculous restriction, the man involved was let out of jail based on following certain rules that were intended to prevent him from potentially endangering society. He violated those restrictions and went back to jail.
Seems fair to me.
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Facebook and BBSs may have overlapping features, but are not the same
In some EU law systems, there is the concept of a "prohibition of analogies". It basically means that someone cannot said to have violated a law if the act was just very similar (analoguous) to what that law says, but not exactly the same. I wonder whether similar principles exist in US law? Obviously it wasn't really a law here, but a probation restriction.
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This guy was arrested for taking photos he shouldn't have been taking and attempted sexual exploitation of a minor. Facebook is filled with minors. Many of them are under the official joining age of 13.
Why exactly is such a person allowed to continue working as a web designer? Surely that's a career that gives him a clear opportunity to continue with his rather depraved activities. It's worrying the courts didn't understand that in the first place.
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Actually WORK in probation..
The big point here though, is he wasn't sent away for JUST this. I'm pretty sure if this was the only thing he did wrong, his probation wouldn't be getting revoked. The biggie here, besides moving w/o telling, was having a 2nd computer he did not tell the court about. I'm not saying people don't get railroaded, because I see it all the time. I'm saying in this specific case, Facebook and the definition of Facebook wasn't the sole or defining factor sending him to jail.
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