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
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.
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.