Sunday, May 16, 2010

5 more reasons why the Paul Chambers decision was wrong

A few days ago I wrote about 5 reasons why I think the judge got it wrong in the Paul Chambers case, R v Paul Chambers, which was heard and decided on the 10th of May. Then later I published the extent of my communications with the Crown Prosecution Service that began on the 5th of March with a letter of complaint. Since the guilty verdict in this case was announced there has been a public outpouring of support that has included notable figures in the entertainment industry such as Stephen Fry and Graham Linehan. A fund has been setup to receive donations to help with Paul's fine and his appeal. I urge you to give what you can if you care about this. There will be costs despite that there are now some excellent communications lawyers working pro-bono on the appeal. I have been commenting in the Guardian "Comment is Free" section and exchanging ideas with some very bright people who have provided many insightful ideas that could help with the defence. I'll give credit where due.
Not all of the responses to this story have been positive. Some people have indignantly asserted that the defendant got what was coming to him, ought to have known better, got off lightly, etc. If you are one of these people I hope you will take the time to read my post about the 5 reasons and then read this one. This post sets out reasons 6-10 why I think the judge made a mistake. Disclaimer: I am not a lawyer. I can only take the information that is available to me and analyze it with reason and logic.
  1. Section 127.1(a) of the Communications Act 2003 might not even apply because neither Twitter nor the Internet are public systems.
    Yes, your heard me. A precedent that has been referenced by the defence and considered by the judge is the case of DPP v Collins which was decided in the House of Lords in 2006. That case saw the same charge applied to a respondent for directing allegedly grossly offensive telephone calls and voice mail messages to the office of his local MP. In the conclusions under paragraph 7 is stated:

    The purpose of the legislation which culminates in section 127(1)(a) was to prohibit the use of a service provided and funded by the public for the benefit of the public for the transmission of communications which contravene the basic standards of our society. A letter dropped through the letterbox may be grossly offensive, obscene, indecent or menacing, and may well be covered by section 1 of the 1988 [Malicious Communications] Act, but it does not fall within the legislation now under consideration.
    Although the telephone network had been privatised before the 2003 law was enacted, it seems that its historical role was still a factor here. When it was run by the British Post Office it was provided and funded by the public and for the benefit of the public. The internet, on the other hand, grew up as a defence project in the United States. ARPANET is what it was called back in the 1960s-70s. In 1985 the US National Science Foundation commissioned the construction of NSFNET to connect university science departments. This spawned worldwide participation in the development of new networking technologies. The network was first opened to commercial interests in 1988. In the 1990s all the TCP/IP networks around the world were interconnected and commercialized to form what we know today as the global Internet. ISPs provide service to their customers for profit. Twitter, an application service running on the internet, is not paid for by public funds. It is a private network that requires membership for participation but not for reading tweets on its timeline. I don't know how they make their money, but I'm pretty sure I'm not paying for it with taxes :)
  2. Section 127.1(a) of the Communications Act 2003 might not even apply because Twitter communication is not (necessarily) in real time.
    In his excellent law blog Andrew Sharpe, a partner at Charles Russell LLP, suggests that the original intent of the law has been corrupted through various reenactments. He traces its genealogy back to a 1935 act of Parliament called the
    Post Office (Amendment) Act, specifically section 10(2). By way of comparision, here is that original statute followed by today's version:

    Section 10(2) of the Post Office (Amendment) Act states:
    If any person-
    (a)  sends any message by telephone which is grossly offensive or of an indecent, obscene, or menacing character; or
    (b)  sends any message by telephone, or any telegram, which he knows to be false, for the purpose of causing annoyance, inconvenience, or needless anxiety to any other person; or
    (c)  persistently makes telephone calls without reasonable cause and for any such purposes as aforesaid;
    he shall be liable upon summary conviction to a fine not exceeding ten pounds, or to imprisonment for a term not exceeding one month, or to both such fine and imprisonment.
    section 127 of the Communications Act 2003 states:

    Improper use of public electronic communications network
    (1) A person is guilty of an offence if he—
    (a) sends by means of a public electronic communications
    network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
    (b)causes any such message or matter to be so sent.
    (2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—
    (a) sends by means of a public electronic communications network, a message that he knows to be false,
    (b) causes such a message to be sent; or
    (c) persistently makes use of a public electronic communications network.
    (3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.
    Sharpe argues as follows:

    Given that in 1935 there were basically only two public communications systems, one a real-time system (telephone), the other not (telegraph), there is the basis for an argument that the original intent of section 10(2)(a) has been corrupted during the number of re-enactments of this provision.  It can be argued, in a Sweet v Parsley most favourable interpretation sense, that the mischief Parliament intended to address in section 10(2)(a) was unlawful messages sent by direct, real-time communications.  If non-real-time communications had been intended to be included, then the section would have referred to telephone and telegraph, as it does in section 10(2)(b).  Indirect communications were not within the scope of this provision at all. To cite a 1935 analogy to Twitter, would Parliament debating the 1935 Bill have accepted that the posting of a telegram on a public house notice board would be within the scope of clause 10(2)(a).  We do not think so.
    Nor do I. It seems clear at least to my non-legal mind that the original law respects that immediate communications have much more power to shock and offend because it is so difficult for the recipient to take a step back and gain a different perspective. What is threatening now, in real time is unpredictable and frightening. A telegram or a message left on an answer phone may be threatening and offensive but can be received with much more objectivity. It can also be shared with others and mitigated in many other ways. It can also be completely disregarded.

    When I was about ten years old I received a crank phone call at home. I answered the phone to a male voice who eventually began to make sexually explicit remarks. After about a minute I hung up the phone. Everything about that phone call remains crystal clear in my memory even though I never mentioned it to anyone before I told my wife about it yesterday. I cannot even repeat it in print after nearly three decades, that's how strong was the shame I felt. It was an immediate violation which I could not view as an outside observer. If I had been living in Britain, this is precisely the type of mischief that this law was intending to criminalize. An answer phone message would not have had the same immediacy even if it had been aimed specifically at me. The phone call was not aimed at me as the caller was unfamiliar with me and may not have even realized that he was speaking to a child. But it WAS me who was engaged with the caller; therefore, it was highly personal and a direct violation.
  3. The judge was convinced beyond a shadow of a doubt that the tweet was menacing in its context, but he looked at the wrong context.
    In his summation, District Judge Bennett writes:

    The context is we live in a society where there are huge security concerns particularly in relation to airports and air travel. I do not need to repeat the very real incidents there have been in the UK in recent years let alone worldwide. With that background I can have no doubt that the remark posted by the defendant is menacing.
    The judge is wrong. The context is that the message was delivered in a conversational style to a known group of people who follow the timeline. The defendant was not imagining that his tweet would be called up in a search and viewed by a person who does not follow his tweets. The context is that the defendant was frustrated by a situation beyond his control and made an exaggerated remark assuming powers that he does not have in order to compensate for his feelings of lack of control. We have all done similar things. The judge ought to have looked at the context in which the message was delivered and the psychology around it rather than simply "the times in which we live". This line of thinking is mostly to the credit of Mark Phillips, a linguistics expert with whom I've been speaking.
  4. The judge was convinced that Chambers was at the very least aware that his tweet was menacing, but he didn't bother to ask another Twitter user.
    This may be a failure of the defence, as not a single witness was called apart from the defendant himself. In discussing intent, the judge says:

    The defendant has maintained in lengthy interviews and also in giving evidence before me today that he had no such intention. He points out the slim likelihood that anyone just on the “Twitter” site would ever see his posting.

    However, I do not have to accept what the defendant tells me about his state of mind at face value. I also note the defendant is an experienced, and clearly very heavy user, of “Twitter”. Furthermore he has travelled by air, although he had not used Robin Hood airport previously. I found strange his evidence in relation to airport threats not seeming to relate to him and appearing to be in another world.
    I wish I had been called to testify. I could have explained to the judge the state of mind in which a tweet such as this one is made. I am an experienced Twitter user and internet applications developer specializing in communication and collaboration software. I know that although these messages are public, there is an expectation of a certain degree of privacy albeit a naive one. We do not expect our semi-private conversations to be monitored by airport security officials or police who are looking for "evidence" of dangerous criminal activity. I also know that Twitter's novel form gives rise to quick and sometimes thoughtless remarks. I am a reasonable person and I would hope that the judge would be forced to conclude that a reasonable person would not find such a message menacing in its proper context.
  5. A successful conviction encourages the security industry to mine our public communications this way, which is a waste of time and effort.
    Yes, police time was wasted. I suppose airport security time was also wasted. But whose fault is this? Not Paul's. These people need to manage their time appropriately. How often has this type of scrutiny of electronic communications actually prevented an act of violence or terrorism? I don't know the answer, but I know that it did not in this case. I suspect that it does not in the vast majority of cases, yet they will carry on doing it. The justification is in the one hypothetical act of terrorism that perhaps would not be prevented if this information were ignored. But there are other ways of preventing crime and goodness knows we've allocated plenty of resources. Ultimately this is a disgraceful waste of public funds to investigate and prosecute a person who is basically not a real threat in any sense. I wish these people would stop.

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