Wednesday, December 15, 2010

Harassment and “Repeated Communications”

As I explained in an earlier post, “harassment” is a crime in most, if not all, states.

As I also noted there, harassment is usually defined in terms of someone who, “acting with the intent to harass, annoy or alarm” another, but with “no intent of legitimate communication” uses a computer or other telecommunications device to communicate with another person, the victim of the harassment. (I’m using the Indiana harassment statute, Indiana Code § 35-45-2-2(a)(4), as the basis of that general definition; the Indiana statute is quite similar in substance to harassment statutes in other states.)

This post is about a juvenile proceeding in which a minor – “Alex C. – was adjudicated delinquent for engaging in harassment in violation of New Hampshire law. The case is In re Alex C., __ A.3d __, 2010 WL 5010391 (New Hampshire Supreme Court 2010), and this is how it arose:

On . . . February 27, 2009, Rachel K.'s daughter ran away from home. The next day, . . . Rachel K. called friends and contacted the police. Using her daughter's password on her home computer, Rachel K. also logged in to her daughter's AOL Instant Message (AIM) account. Using her daughter's screen name of `hey Nicci hey,’ Rachel K. indicated her daughter was available to communicate with her friends. She believed that one of her daughter's friends might respond with information that would help locate her daughter.

At approximately 10:30 a.m., [Alex C.], using the screen name `skaterboy,’ sent an instant message to `hey Nicci hey.’ Rachel K. responded with a single instant message of `Hey’; the instant message exchange then ended without incident.

At approximately 11:00 a.m., [Alex C.], now using the screen name `the kaboomroom95’ again contacted `hey Nicci hey.’ He initially believed he was communicating with Rachel K.'s daughter. After `hey Nicci hey’ inquired who he was, [Alex C.] realized Rachel K. was using her daughter's screen name and the following instant messages were sent:

thekaboomroom95 (11:19:26 AM): ha this aint even [Rachel K.'s daughter]
the kaboomroom95 (11:20:28 AM): f* * *ing idiots idk if this is her mom or not but get the f* * * off her aim you stupid f* * *ing b* * * *
hey Nicci hey (11:27:01 AM): nice language young man--have the logs so we and the police are all set--thanks Alex and
thekaboomroom95 (11:28:10 AM): well for one fat ass learn to spell for 2 i dident say where she is u f* * *ing dumbasss i said if ur there i was gonna tell her to get the f* * * out because the cops will be there you just get dumber and dumber go roll down a hill or something and squish a[ ]couple of kids u fat whale.

After this last instant message, a forty-six minute break occurred, during which neither Rachel K. nor [Alex C.] . . . logged off their AIM accounts.

Beginning at 12:14:59 p.m. and ending at 12:15:36 p.m . . . [Alex C.] typed the phrase `fats* * * and sent it to `hey Nicci hey’ seventeen separate times. As [he] hit the `return’ key in between typing each phrase on his computer keyboard, the phrase appeared as seventeen separate entries in the instant messaging window on Rachel K.'s computer.

Less than a minute later, at 12:16:00 p.m., [he] typed the phrase `stuppppid c* * * ‘ and sent it to `hey Nicci hey.’ For . . . four minutes more, until 12:20:23 p.m., [Alex C.] sent an additional twenty-one instant messages; Rachel K. responded with seven instant messages. . . . At 12:20:23 p.m., [Alex C.] sent a final instant message of `peace faggot’ to "hey Nicci hey" before logging off . . . at 12:23:00 p.m.

In re Alex C., supra.

Rache; K. apparently contacted law enforcement about all this, because at some point after the instant message exchange, Alex C. was charged with “the offense of harassment” in violation of New Hampshire Revised Statutes § 644.4(I)(b).

Section 644.4(I)(b) makes it a misdemeanor to make “repeated communications at extremely inconvenient hours or in offensively coarse language with a purpose to annoy or alarm another”. The juvenile petition filed against Alex C. stated as follows:

W[i]th the purpose to annoy Rachel [K.] [the juvenile] made repeated communications to her house in offensively coarse language, to wit, he made communications to her residence twenty times between 11:20 AM and 12:16 PM using coarse language.

In re Alex C., supra. The juvenile court held a hearing on the petition, and at the

close of the adjudicatory hearing, the juvenile moved to dismiss the petition, arguing that the instant messaging `conversation between him and [Rachel K.]’ constituted `one communication,’ and, therefore, his conduct did not fall within the harassment statute's proscription against `repeated communications.’ After hearing arguments and reviewing the parties' memoranda of law, the trial court issued a written order ruling that all of the elements of the harassment charge had been proved beyond a reasonable doubt, and finding the petition true.

In re Alex C., supra. Alex C. appealed the decision to the New Hampshire Supreme Court, claiming the trial judge erred in rejecting his argument that the instant message “conversation” he had with Rachel K. didn’t involve “repeated communications”. In re Alex C., supra. Here is how the Supreme Court described Alex C’s argument:

[Alex C.] contends that the trial court erred in finding that his conduct constituted `repeated communications’ within the meaning of § 644.4(I)(b). Specifically, he argues that a `plain reading’ of § 644.4(I)(b `indicates that the statute prohibits a pattern of separate instant message conversations, not multiple comments made within a single AIM conversation. The State's reading of the statute to the contrary leads to an absurd and unjust result that is not supported by the legislative intent and the cases narrowly construing the statute.’ (emphasis added).

In re Alex C., supra.

The Supreme Court then explained that because the trial court construed the issue as “a question of law,” it would review the lower court’s ruling “de novo.” In re Alex C., supra.

In analyzing the issue, the Supreme Court noted that Alex C. conceded that “pertinent language” in his messages was “`profane,’” did “not contest that it was `offensively coarse’” and did not claim he “had any purpose other than to annoy Rachel K.” In re Alex C., supra. The only issue before the court, then was whether Alex C’s “twenty instant messages . . . sent in offensively coarse language with the purpose” of annoying Rachel K, were “`repeated communications’” under § 644.4(I)(b). In re Alex C., supra.

The court first considered the “nature” of instant messaging, explaining that it had found, in an earlier case, that instant messaging is “a form of computer conversation in which individuals hold an online conversation”. In re Alex C., supra. The court then found that instant messaging qualifies as “communicating” under the New Hampshire harassment statute. In re Alex C., supra. It then applied this analysis to what Alex C. did:

[W]e believe . . . the plain and ordinary meaning of `repeated communications," within the overall context of § 644.4, is the renewed, frequent, or constant imparting of a message by any method of transmission. . . . Here, over the course of fifty-six minutes, from 11:20 a.m. to 12:16 p.m., [Alex C.] composed twenty separate instant messages and . . . typed them into his instant messaging application. After typing an instant message, he sent it from his computer to that of Rachel K., where the message he had just imparted was available for her to read. [He] repeated this action twenty times. We fail to see how [his] repeated instant message communications do not fit squarely within the actions proscribed by the plain language of the statute.

In re Alex C., supra. The court rejected Alex C.’s argument that the “instantaneous and real-time nature of an instant message conversation resembles the rhythm and experience of a telephone conversation” in that an instant message conversation, “like a telephone conversation, necessarily involves numerous exchanges back and forth between the participants.” In re Alex C., supra. It explained that it viewed

instant messaging as the direct technological progeny of e-mailing. As such, we consider . . . instant messaging, not . . . a single conversation, but a series of discrete electronic messages between . . . individuals. As in . . . e-mail, the sender composes each instant message on a computer keyboard; . . . physically triggers each message to be sent by one computer and received by another . . .; and the recipient may read each instant message on a computer. While sending an instant message may invite a response, and may even initiate an instant messaging conversation, it does not necessarily have to do so. In that sense, we believe an instant message is similar, not to a telephone conversation, but to a telephone call that reaches an answering machine instead of the ear of the telephone call's intended recipient. In both cases, a message has been imparted. . . .

[In] a telephone conversation, . . . individuals can simultaneously speak directly with, and listen to, each other. Such conversation entails the near instantaneous imparting and receiving of oral messages; parties often speak simultaneously, with one person talking over or cutting off the other's speech. . . . [A] telephone conversation's substance is not composed, typed on a computer keyboard, electronically sent to another computer, and made available for another person to read, comprehend, and possibly respond. Indeed, the particular facts of this case serve to further underscore the differences. While a fifty-six minute telephone call between two people might not be uncommon, we think that a forty-six minute break during that call strains the meaning of `conversation.’

In re Alex C., supra.

The New Hampshire Supreme Court therefore held that given the plain language of the statute, and what it deemed to be the state legislature’s “intent to provide for a broad proscription against harassment via the Internet,” the trial court did not err in finding that Alex C. sent repeated communications and, in so doing, committed harassment. In re Alex C., supra. In an aside, the Supreme Court explained that “if the legislature did not intend this interpretation of” the statute, “it is free to amend the statute as it sees fit.” In re Alex C., supra.


Anonymous said...

Yes, I am certain that the mother's actions actually helped to improve her relationship with her daughter - NOT!

What a stupid, stupid woman.

I think that it was the 45 minute break in the conversation that did him in. IMs are the same as normal speaking conversations and not emails. That is why they are call INSTANT MESSAGES and not emails. When are these stupid old people (the judges) going to learn that they have no business in trying to adjudicate technology issues. I use IM a lot. For me it is the same as talking to someone. i can type as fast as I talk and the free flow of the conversation is the same as oral communication.

But the 46 minute break should have been a cooling off period for both persons. But they stupid mother kept egging him on. The kid was only 14 years old. It's not like he is going to jail or anything. Yet the cost to the taxpayers for this stupid case is ten of thousands of dollars.

C. Barnes said...

Interesting case.

I am working on a misdemeanor appeal in California, where the appellant (my client) was convicted of violating PC 653(m)(a), which criminalizes harassment using "obscene" language.

The statute has been upheld before as constitutional, even when the language used is not obscene in the Miller sense.

Are you familiar with the California case, People v. Hernandez that so held? (Not sure if you're a CA attorney...)

The case seems at least in some respects wrongly decided, insofar as the court reasons that the legislature didn't mean thru the code section to regulate obscenity per se, but rather words that are offensive to one's feelings according to an ordinary dictionary definition. So the statute is not overbroad.

This seems to beg the question of the constitutionality of the code section, doesn't it? Don't know if you have any thoughts on this, but... just something I'm struggling with.