Court Finds Juvenile Delinquent Based on Allegedly Offensive Instant Messages — In re Alex C.

[Post by Venkat with additional comments by Eric]

In re Alex C., No. 2009-399 (N.H. Supreme Court; Nov. 30, 2010)

Rachel K.’s daughter ran away from home. In an effort to locate her, Rachel logged on to her daughter’s AOL Instant Message account. One of her daughter’s friends sent Rachel repeated offensive messages to Rachel’s daughter’s IM account (“hey Nicci hey”). They had the following IM exchange (after Rachel’s mom inquired who the friend was):

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 hermom 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 thelogs 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 urthere 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 exchange, there was a lull in activity. The messages then continued:

Beginning at 12:14:59 p.m. and ending at 12:15:36 p.m. — a period of thirty-seven seconds — the juvenile typed the phrase “fats***” and sent it to“hey Nicci hey” [Rachel’s daughter’s IM handle] seventeen separate times. As the juvenile 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.’shome computer. Less than a minute later, at 12:16:00 p.m., the juvenile typed the phrase “stuppppid c***” and sent it to “hey Nicci hey.” For approximately four minutes more, until 12:20:23 p.m., the juvenile sent an additional twenty-one instant messages; Rachel K. responded with seven instant messages of herown. At 12:20:23 p.m., the juvenile sent a final instant message of “peacefaggot” to “hey Nicci hey” before logging off from his AIM account at 12:23:00p.m.

The statute (RSA 644:4 I(b)) requires:

repeated communications at extremely inconvenient hours or in offensively coarse language with a purpose to annoy or alarm another.

Alex C. argued – analogizing the IM exchange to a telephone conversation – that the IM conversations were a single communication and not “repeated communications.” The court rejected this argument, likening an instant message to a telephone call that reaches an answering machine. (Talk about strained analogies.) The court also found the two dissimilar in that a telephone conversation allows for “simultaneous” communication, while in the IM context, a message must be “composed . . . typed . . . [and] electronically sent . . . ” In the court’s view, the 46 minute lull between the IM exchanges turned the entire exchange into two (or more) separate “conversations.”

The court had to deal with previous precedent where it upheld section I(b) (in a telephone harassment case) and distinguished section I(b) from other subsections of the statute which it previously found unconstitutional. In the previous case, the court upheld section I(b) against a constitutional challenge on the basis that I(b) requires a “repeated course of calls.”

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Rachel K., the mother, is deserving of sympathy because she used her daughter’s IM handle to try to locate her daughter. However, the conviction raises obvious First Amendment concerns. (A sidenote as to whether Rachel K. herself could have gotten into hot water for improperly accessing her daughter’s IM account.)

First, Alex C. communicated with the victim through the victim’s daughter’s IM account, which the victim may or may not have had implied authorization to use. It was unclear as to who initiated the exchange. Second, an instant message conversation differs significantly from an email or a telephone call. IM conversations are typically opt-in (you have to agree to accept messages from a contact before they can message you) and you can block messages from anyone (even temporarily) pretty easily – IM messages are much less intrusive in this regard than a phone call or even email. There’s no discussion in the decision of whether Rachel K. could (or should) have taken the simple step of ignoring or blocking the messages. Phone harassment cases often push the envelope, but likening an instant message to a phone call is a stretch – the answering machine analogy even more so.

One overall concern this decision raises is that it penalizes expression that I would guess occurs in comment sections or on Facebook pages with some regularity. (See, e.g., this Facebook rant from Bristol and Willow Palin for an example with language that some would say is milder but others may find equally offensive or annoying (we can probably all agree that the spelling is equally bad). This raises a related issue: what is the appropriate standard for determining whether something is annoying or offensive? Should people expect “coarser” language online?) The juvenile here made a bad call in sending offensive messages to Rachel K., but a delinquency charge? As a general matter, penalizing someone for using “offensively coarse language” with the purpose of “annoying” someone is a shaky First Amendment road to go down, even if the messages are communicated by email or phone. This decision seemed like it went off the First Amendment rails altogether. (Judging from the court’s opinion, it did not seem like Alex C. raised much of a First Amendment defense.)

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Eric’s comments: As Venkat explores, the key issue here is what constitutes a “conversation” online. It turns out the meaning of “conversation” is surprisingly technology-dependent. Thus, we think of a telephone conversation as beginning with a ring and ending with a click; for most people, if one party hangs up and the other party calls again, that constitutes a new telephone conversation.

But what does it mean to have a “conversation” in online contexts? Consider this question with respect to email. Gmail threads emails with the same subject line so I can delete dozens of emails in the same thread with a single click; and I can “mute” the entire thread with another click. When there are two emails in a Gmail thread, are those emails one conversations or two? It appears that inquiry would matter to this court, although most Gmail users would find the question bizarre.

With respect to IMs, the opinion doesn’t appear to acknowledge any differences between a chat that takes place in a single window as compared to serial chats that launch new windows. So, for example, if I’m done chatting and I close the window, and then a new window noisily pops up from the same person some time later and intrudes into my attention sphere, we might analogize that to a second telephone call after a hang-up on the first call. In contrast, if the conversation takes a break (a common phenomenon in chatting when one or both parties are multi-tasking) but remains in the same window throughout, we might analogize this to a telephone conversation where the parties take a long pause without talking. If all of the chatting took place in the same window that remains open throughout, to me it resembles an email thread in Gmail where I’d consider it all part of the same conversation.

Then again, from a legal standpoint, it ought not matter if the mom closed out the window or not. In AOL’s AIM, Alex C. would not know if the mom had closed the chat window or left it open, so I see this as very different from a telephone caller who hears a click and then a dial tone and yet calls up the person again. But even if the mom had closed out the window, the facts strongly that Alex C. was on an episodic but nevertheless continuous evening-long rant. As a result, from my perspective, this was a terrible ruling. Alex C’s chat messages are hardly praise-worthy, but calling it the equivalent of criminal cyber-stalking/cyber-harassment stretches those concepts far beyond any reasonable boundary.

The court’s struggle to analogize IMs to telephone calls brought to mind other problems we’ve encountered trying to statutorily define methods of communication, such as the cases struggling with whether an email can be a telephone call (yes) or a pop-up ad is an email (no). Ideally, we would draft statutes that don’t create these kinds of technological classification challenges. However, given the number of technological assumptions baked into statutory wording combined with increased technological convergence, I expect we’ll get more of these goofy classification inquiries in the future.

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Update: Professor Volokh comments on this ruling at the Volokh Conspiracy: “Illegal in New Hampshire to Repeatedly Use “Offensively Coarse Language” With the Purpose to Annoy.”