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?

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.

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Comments on “Guy Loses Probation Because Court Decides That Facebook & MySpace Are 'Electronic Bulletin Boards'”

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Jon B. (profile) says:

Re: Re:

I agree with this. The only excuse here is that he uses it for his job. That’s not a good excuse. If he wants to not be in jail and stick to the guidelines, he should try to get a different job. It sounds like the guidelines are intended to keep him away from communication platforms. Want to read the headlines? Fine. But no Facebook account for you.

Josh in CharlotteNC (profile) says:

Re: Re: Re:

If he wants to not be in jail and stick to the guidelines, he should try to get a different job.

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?

Mike Masnick (profile) says:

Re: Re:

This is just splitting hairs. If he’s not even allowed on an IRC channel, there’s no way he should be allowed near Facebook. Unclear? Perhaps. Controversial? Hardly.

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.

Anonymous Coward says:

Re: Re: Re:

Intent matters, Mike. With the ubiquitous and volatile nature of social networking tools today, popularity of a particular one shouldn’t have any bearing on whether it’s specifically enumerated.

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.

PRMan (profile) says:

Re: Re: Re: Re:

I would say he violated the intent if he has friended any underage children on Facebook. If he has, then I’m really not concerned about him going back to jail.

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.

Anonymous Coward says:

Re: Re: Re:

The Supreme Court tends to have issues with it too:

“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)

Anonymous Coward says:

Re: Re:

“social networking [is] underneath bulletin board system[s] because [users] can post comments and that’s what a bulletin board system is. “

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.”

Dez (profile) says:

Both have IM capabilities

I don’t disagree with the court in the fact that Facebook was off limits (only with the classification of the site).

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.

Dez (profile) says:

Re: Re:

Agreed, but considering this was probation he had a set amount of time to wait until he could use the internet unfettered again. You could check your bank account, pay your bills.

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.

Joe Publius (profile) says:

Re: Re:

I think it’s pretty clear that Facebook would be the type of site that he should have stayed away from, because it covers or is the modern equivalent to the listed banned activities. Then again, since most websites include those functions to some degree a little guidance should be given. Should the fact that Amazon has a forum function make it a disallowed site?

Anonymous Coward says:

I would consider Facebook a BBS, a little more advanced then the good ole dial-up days, but still the same idea. A site for social gather and posting of notes, events, messages, and some social gaming (I miss you BRE, Trade Wars and Legend of the Red Dragon!).

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.

Dick says:

Mike, you should think twice about publishing articles like this.

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.

cjstg (profile) says:

a rose by any other name

mike, one thing you didn’t do was present a definition of what you think a bulletin board is. from my perspective fb and myspace are bulletin boards, but if you want to split hairs then lets bring out the hairs. this is the first paragraph from wikipedia:

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.

Anonymous Coward says:

Are you seriously arguing that they must EXPLICITLY list the sites? The intent of that section is clear, to restrict electronic communications in an effort to prevent him from seeking out new victims. What if some other new service came out would you expect the courts to predict the future and include future services in the probation restrictions?

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.

Anonymous Coward says:

Re: Re: Re:

My point was that if he was really trying to promote his business he certainly wouldn’t be doing it on Facebook. I am not saying that he should be allowed to use LinkedIn, as I think that would also be prohibited under the probation agreement. I was merely stating that I believe he had alterior motives and wasn’t using Facebook as he claimed.

AB says:

Totaly off topic

To all the trolls out there, please note that this is what freedom actually looks like. If you examine the comments so far most of them disagree with Mikes evaluation. Just because we normally support his views doesn’t mean we are ‘yes’ men. Everyone here is a free individual who is allowed the freedom to express their own opinions even when they disagree. This freedom is what makes this site worth visiting and worth participating in.

Anonymous Coward says:

Re: Totaly off topic

A troll post complaining about trolls. People don’t accuse Mike of not providing a means to disagree with him the complaints are that TechDirt is a haven for pirates to come here and feel better about themselves because they are surrounded by like minded individuals. I’m not saying you’re a pirate and I’m not saying Mike is a pirate, but there are a lot of them here.

PaulT (profile) says:

Re: Re: Totaly off topic

I’m still awaiting proof of that. You’ve provided nothing, other than your idiotic assumption that to question anti-piracy tactics and to show ways in which piracy need not be a problem equates to piracy. So, please, evidence…

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.

Faceless Minion says:

Facebook IS a BBS. Trying to argue against that is just plain silly. Besides, I truly doubt that that ten years is just because of that in and of itself… As you noted:

(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.

Lord Binky says:

Re: Re:

It gets fuzzy fast, because the facebook thing is quite minor on his laundry list of offenses. It still isn’t right if it is held against him that he used it in the first place after he asked the proper person and it was ok’d. The fact that after it was stated it’s no longer ok and he does it anyways overshadows being correct the first time. Then again it sounds like his probation officer was being fairly lenient until he abused it.

Anonymous Coward says:

Re: Re: Re:

I’ll agree that it get’s fuzzy fast but I don’t necessarily agree with your logic. Unfortunately there isn’t enough here to actually formulate an accurate account of what happened. For example:

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.

Chuck Norris' Enemy (deceased) (profile) says:

Q: The end of paragraph 13 it gives examples of Napster, Gnutella, Freenet. Does not say Facebook, does it?

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.

gorehound (profile) says:

Interesting story is myself.
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.

DanZee (profile) says:

Fuzzy legal language

Well, let’s admit the guy is a bad dude, and the reason he’s returning to jail is because he violated a lot more rules than just using Facebook. (I would think moving without telling his probation officer is a biggie!)

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!

Digital Consumer (profile) says:

Sorry Mike, I think you are from outer space on this one, and I generally agree with a majority of your articles. These creeps use every angle they can get to get at children, and just because he wasn’t convicted of more charges, doesn’t mean they aren’t out there. I have a family member that was convicted of this stuff, and personally I think he is better off dead for the things he did to his kids. I c0-ran a BBS back in 95-96, and facebook is exactly what a bbs is(minus a BBS operator dropping into your session to chat for shits and giggles), just with more advanced options and more money. It is obviously the evolution of the old BBS software, and in any case, the courts obvious intention was to stop this guy from having any opportunity to approach children or have access to anything that would feed his sickness(which in turn endangers children). Stopping internet access from a guy like this is definitely not extreme or unreasonable, as there are very real victims at the end of the line. To be honest, even defending someone that is seeking loopholes to resume his predatory practices puts you in a bad light and undermines what I believe you are trying to do with your blogs and your site in general.

Digital Consumer (profile) says:

And I understand what you are trying to say about legal language being a slippery slope between freedom and 10 years in prison, but to any rational person, they would understand this guy shouldn’t be within 10 miles of children or any kind of communication with them. I believe there an indescribable amount of bad laws out there that should not be enforced, and I would cheer someone defending themselves through a loophole for those, but when a law actually works by putting a sick fuck in prison, we should all be cheering for that tiny piece of justice in the world.

Rekrul says:

…and surreptitious photographing, a class five felony.

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.

Anonymous Coward says:

Re: Re:

Don’t know about in the US, but in Australia my uncle was cautioned by police and ordered (and watched to confirm) that he delete a photo he took.

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.

vbevan (profile) says:

Re: Re: Re:

Unless your uncle was taking a picture with the clear intent of using the person in the background to promote a product without their consent or some other commercial use (i.e. the police officer could mind read) then he wasn’t breaking any Australian laws. Australia doesn’t even have the crazy public figure laws of the US, there’s absolutely no expectation of privacy if you are in or visible from a public area.

Lord Binky says:

Does their little list of internet no-no’s include e-mail? it seems like they are saying no bidirectional communication through the internet. Can he read a forum? Is he banned from reading? What if he did a video blog or youtube videos. I just don’t get the point of pointing out things like P2P/IM/BBS but then leaving him open to other methods such as direct downloads/file lockers/ and email.

Neil Smithline (profile) says:

Restriction Was Against Posting & Interacting On The Web

I fail to see what the fuss is about this incident.

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.

Ralph-J (profile) says:

Facebook and BBSs may have overlapping features, but are not the same

While there are overlapping features, neither has all the features of the other.

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.

aikiwolfie (profile) says:

I think it’s pretty obvious Facebook should have been off limits from the get-go. Facebook is a composite site which integrate a bulletin board service with instant messaging and on-line storage for photographs as well as being a tool for networking and making contacts.

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.

Eric says:

Actually WORK in probation..

Ok, first of all, the guy didn’t get 10 yrs in jail for visiting Facebook. When you get probation, you accept that you will be jailed for what you were originally found guilty for. I understand the wording in the probation orders was a bit behind the times, but technology moves a weeeee bit faster than the government and the court system. I would consider both Facebook and MySpace as a BBS, and as a guy who was building websites for living, he would also.

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.

sunshine68 says:

Response to: Digital Consumer on Apr 5th, 2012 @ 1:22pm

Very well said…I totally agree with your whole comment you posted. I was very surprised at some of the comments that some people have posted as to being against probation for violating this man. I believe if allowed more time on fb ect…the man would’ve found another inocent little child to hurt & ruin the life of.

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