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Author Topic: Legal Info - Relevant Harassment Laws  (Read 631 times)

Offline Saul_Goodman

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Legal Info - Relevant Harassment Laws
« on: August 09, 2013, 06:21:12 AM »
***********
Legal Disclaimer: The legal information below is for educational purposes only and does not constitute legal advice. If you are engaged in activities that may raise potential legal concerns, you should contact a lawyer in your jurisdiction for legal advice.
***********

Fellow Phone Losers,
The laws in my other post just deal with the laws governing "recording phone calls." There are other laws that apply to the prank call itself. I'll try to post some of them here.

I'm posting these statutes here just so all the relevant law is in one place, not to freak anybody out. I've heard of prank callers getting busted, which I think is ridiculous; so I thought I'd post this stuff here so you could read what some of the relevant laws say so you can better avoid doing the kind of stuff that crosses the line. Brad's "Rules" page is also excellent, and mentions a lot of advice on ways to avoid getting your ass busted by humorless cops just for joking around. See www.phonelosers.org/rules.

- S'All Good, Man.
« Last Edit: August 14, 2013, 10:57:58 AM by Saul_Goodman »
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Offline Saul_Goodman

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Re: Legal Info - Relevant Harassment Laws
« Reply #1 on: August 09, 2013, 06:22:59 AM »
Important Federal Harassment Statute
Here's another federal statute that deals with interstate harassment by phone. Although I know no PLA member would ever intentionally harass somebody, I thought I'd post this anyway.

This is the reason RBCP's Rules are so critical to staying out of jail: http://www.phonelosers.org/rules.

(Available at http://www.law.cornell.edu/uscode/text/47/223)

47 USC § 223 - Obscene or harassing telephone calls in the District of Columbia or in interstate or foreign communications

(a) Prohibited acts generally
Whoever—
(1) in interstate or foreign communications—
(A) by means of a telecommunications device knowingly—
(i) makes, creates, or solicits, and
(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image, or other communication which is obscene or child pornography, with intent to abuse, threaten, or harass another person;
(B) by means of a telecommunications device knowingly—
(i) makes, creates, or solicits, and
(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image, or other communication which is obscene or child pornography, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication;
(C) makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to abuse, threaten, or harass any specific person;
(D) makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; or
(E) makes repeated telephone calls or repeatedly initiates communication with a telecommunications device, during which conversation or communication ensues, solely to harass any specific person; or
(2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity,
shall be fined under title 18 or imprisoned not more than two years, or both.


(b) Prohibited acts for commercial purposes; defense to prosecution
(1) Whoever knowingly—
(A) within the United States, by means of telephone, makes (directly or by recording device) any obscene communication for commercial purposes to any person, regardless of whether the maker of such communication placed the call; or
(B) permits any telephone facility under such person’s control to be used for an activity prohibited by subparagraph (A),
shall be fined in accordance with title 18 or imprisoned not more than two years, or both.
(2) Whoever knowingly—
(A) within the United States, by means of telephone, makes (directly or by recording device) any indecent communication for commercial purposes which is available to any person under 18 years of age or to any other person without that person’s consent, regardless of whether the maker of such communication placed the call; or
(B) permits any telephone facility under such person’s control to be used for an activity prohibited by subparagraph (A), shall be fined not more than $50,000 or imprisoned not more than six months, or both.
(3) It is a defense to prosecution under paragraph (2) of this subsection that the defendant restricted access to the prohibited communication to persons 18 years of age or older in accordance with subsection (c) of this section and with such procedures as the Commission may prescribe by regulation.
(4) In addition to the penalties under paragraph (1), whoever, within the United States, intentionally violates paragraph (1) or (2) shall be subject to a fine of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation.
(5)
(A) In addition to the penalties under paragraphs (1), (2), and (5), whoever, within the United States, violates paragraph (1) or (2) shall be subject to a civil fine of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation.
(B) A fine under this paragraph may be assessed either—
(i) by a court, pursuant to civil action by the Commission or any attorney employed by the Commission who is designated by the Commission for such purposes, or
(ii) by the Commission after appropriate administrative proceedings.
(6) The Attorney General may bring a suit in the appropriate district court of the United States to enjoin any act or practice which violates paragraph (1) or (2). An injunction may be granted in accordance with the Federal Rules of Civil Procedure.


(c) Restriction on access to subscribers by common carriers; judicial remedies respecting restrictions
(1) A common carrier within the District of Columbia or within any State, or in interstate or foreign commerce, shall not, to the extent technically feasible, provide access to a communication specified in subsection (b) of this section from the telephone of any subscriber who has not previously requested in writing the carrier to provide access to such communication if the carrier collects from subscribers an identifiable charge for such communication that the carrier remits, in whole or in part, to the provider of such communication.
(2) Except as provided in paragraph (3), no cause of action may be brought in any court or administrative agency against any common carrier, or any of its affiliates, including their officers, directors, employees, agents, or authorized representatives on account of—
(A) any action which the carrier demonstrates was taken in good faith to restrict access pursuant to paragraph (1) of this subsection; or
(B) any access permitted—
(i) in good faith reliance upon the lack of any representation by a provider of communications that communications provided by that provider are communications specified in subsection (b) of this section, or
(ii) because a specific representation by the provider did not allow the carrier, acting in good faith, a sufficient period to restrict access to communications described in subsection (b) of this section.
(3) Notwithstanding paragraph (2) of this subsection, a provider of communications services to which subscribers are denied access pursuant to paragraph (1) of this subsection may bring an action for a declaratory judgment or similar action in a court. Any such action shall be limited to the question of whether the communications which the provider seeks to provide fall within the category of communications to which the carrier will provide access only to subscribers who have previously requested such access.


(d) Sending or displaying offensive material to persons under 18
Whoever—
(1) in interstate or foreign communications knowingly—
(A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or
(B) uses any interactive computer service to display in a manner available to a person under 18 years of age,
any comment, request, suggestion, proposal, image, or other communication that is obscene or child pornography, regardless of whether the user of such service placed the call or initiated the communication; or
(2) knowingly permits any telecommunications facility under such person’s control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity,
shall be fined under title 18 or imprisoned not more than two years, or both.
(e) Defenses
In addition to any other defenses available by law:
(1) No person shall be held to have violated subsection (a) or (d) of this section solely for providing access or connection to or from a facility, system, or network not under that person’s control, including transmission, downloading, intermediate storage, access software, or other related capabilities that are incidental to providing such access or connection that does not include the creation of the content of the communication.
(2) The defenses provided by paragraph (1) of this subsection shall not be applicable to a person who is a conspirator with an entity actively involved in the creation or knowing distribution of communications that violate this section, or who knowingly advertises the availability of such communications.
(3) The defenses provided in paragraph (1) of this subsection shall not be applicable to a person who provides access or connection to a facility, system, or network engaged in the violation of this section that is owned or controlled by such person.
(4) No employer shall be held liable under this section for the actions of an employee or agent unless the employee’s or agent’s conduct is within the scope of his or her employment or agency and the employer
(A) having knowledge of such conduct, authorizes or ratifies such conduct, or
(B) recklessly disregards such conduct.
(5) It is a defense to a prosecution under subsection (a)(1)(B) or (d) of this section, or under subsection (a)(2) of this section with respect to the use of a facility for an activity under subsection (a)(1)(B) of this section that a person—
(A) has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in such subsections, which may involve any appropriate measures to restrict minors from such communications, including any method which is feasible under available technology; or
(B) has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number.
(6) The Commission may describe measures which are reasonable, effective, and appropriate to restrict access to prohibited communications under subsection (d) of this section. Nothing in this section authorizes the Commission to enforce, or is intended to provide the Commission with the authority to approve, sanction, or permit, the use of such measures. The Commission shall have no enforcement authority over the failure to utilize such measures. The Commission shall not endorse specific products relating to such measures. The use of such measures shall be admitted as evidence of good faith efforts for purposes of paragraph (5) in any action arising under subsection (d) of this section. Nothing in this section shall be construed to treat interactive computer services as common carriers or telecommunications carriers.


(f) Violations of law required; commercial entities, nonprofit libraries, or institutions of higher education
(1) No cause of action may be brought in any court or administrative agency against any person on account of any activity that is not in violation of any law punishable by criminal or civil penalty, and that the person has taken in good faith to implement a defense authorized under this section or otherwise to restrict or prevent the transmission of, or access to, a communication specified in this section.
(2) No State or local government may impose any liability for commercial activities or actions by commercial entities, nonprofit libraries, or institutions of higher education in connection with an activity or action described in subsection (a)(2) or (d) of this section that is inconsistent with the treatment of those activities or actions under this section: Provided, however, That nothing herein shall preclude any State or local government from enacting and enforcing complementary oversight, liability, and regulatory systems, procedures, and requirements, so long as such systems, procedures, and requirements govern only intrastate services and do not result in the imposition of inconsistent rights, duties or obligations on the provision of interstate services. Nothing in this subsection shall preclude any State or local government from governing conduct not covered by this section.


(g) Application and enforcement of other Federal law
Nothing in subsection (a), (d), (e), or (f) of this section or in the defenses to prosecution under subsection (a) or (d) of this section shall be construed to affect or limit the application or enforcement of any other Federal law.


(h) Definitions
For purposes of this section—
(1) The use of the term “telecommunications device” in this section—
(A) shall not impose new obligations on broadcasting station licensees and cable operators covered by obscenity and indecency provisions elsewhere in this chapter;
(B) does not include an interactive computer service; and
(C) in the case of subparagraph (C) of subsection (a)(1) of this section, includes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet (as such term is defined in section 1104  [1] of the Internet Tax Freedom Act (47 U.S.C. 151 note)).
(2) The term “interactive computer service” has the meaning provided in section 230 (f)(2) of this title.
(3) The term “access software” means software (including client or server software) or enabling tools that do not create or provide the content of the communication but that allow a user to do any one or more of the following:
(A) filter, screen, allow, or disallow content;
(B) pick, choose, analyze, or digest content; or
(C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.
(4) The term “institution of higher education” has the meaning provided in section 1001 of title 20.
(5) The term “library” means a library eligible for participation in State-based plans for funds under title III of the Library Services and Construction Act (20 U.S.C. 355e et seq.).

« Last Edit: August 14, 2013, 11:04:51 AM by Saul_Goodman »
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Gerbil & Associates, LLP
Criminal Attorneys
http://www.bettercallsaul.com/

Offline Saul_Goodman

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Re: Legal Info - Relevant Harassment Laws
« Reply #2 on: August 14, 2013, 11:35:57 AM »
The key language in this statute seems to be the specific intent requirement that requires prankers to make calls "with intent to abuse, threaten, or harass another person."

Keys to avoiding trouble under this statute:
NEVER target specific people with the intent to abuse or harass them
  • Contacting random people, with no specific intent to harm any particular person, would seem to be a safer way to go under this language--although, I would have to look up specific cases where this law has been applied to see how courts interpret the terms "abuse," "threaten," and "harass."
  • Don't say things that make it seem like you intend to harass a particular person. This could be used by prosecutors to try to prove you intended to harass someone, even though you didn't.

NEVER make threats or even allude to anything threatening
  • After 9/11, this should be common sense for anyone. Pre-9/11, pranks were pranks. After 9/11, simple pranks might be considered "making terroristic threats" by humorless cops or ambitious prosecutors looking for high-profile terrorism prosecutions. Just think about the 5-year-old kid who got arrested for pointing a chickenfinger at a classmate and saying "bang." Counter-terrorism fanaticism leads to some pretty ridiculous overreactions, so don't even come close to making a threat over the phone--NOT EVER.
  • If a person accuses you of making a threat or scaring them, diffuse the situation on the spot. Abort the prank, tell them you're just a prank caller and there's nothing to worry about. You might mention that you're doing it for a radio show (if this is true), and that you live far away and just picked their number at random. That should calm down all but the psychos, and cops don't usually waste their time on the ravings of hypersensitive psychos.

NEVER call the same person repeatedly to excess to avoid being seen as having the "intent to harass;"
  • Don't call the same person over and over.
  • Also, do like Brad, and don't give out people's phone numbers for pranks, because this can easily get out of control and you can be blamed for all the bullshit other idiots do even if you had nothing to do with it.

In sum,
  • #1 Avoid Making Prank Calls Yourself - Just Enjoy Great Podcast Shows Like PLA Radio, the Snow Plow Show, and Madhouse Live
  • #2 If You Must Make Calls Yourself, READ AND FOLLOW BRAD'S RULES at www.phonelosers.org/rules.
  • #3 Keep It Fun and Free of Malicious Intent - Never Make Calls with the Intent to "Abuse, Harass, or Threaten."

- Saul Goodman
« Last Edit: August 14, 2013, 11:40:21 AM by Saul_Goodman »
Associate
Gerbil & Associates, LLP
Criminal Attorneys
http://www.bettercallsaul.com/

Offline Saul_Goodman

  • Criminal Lawyer
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  • Posts: 53
  • 1337 13V3L: +2/-0
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Re: Legal Info - Relevant Harassment Laws
« Reply #3 on: August 14, 2013, 11:45:06 AM »
P.S. Again, I'm not posting this legal info to freak anybody out. I just really hate to see harmless, fun-loving, people get busted for stupid shit.
And the best way to avoid getting busted is to know the law ahead of time and structure your activities so that you avoid giving cops and prosecutors a way to take your freedom away.

- Saul Goodman
« Last Edit: August 14, 2013, 11:46:53 AM by Saul_Goodman »
Associate
Gerbil & Associates, LLP
Criminal Attorneys
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Offline Saul_Goodman

  • Criminal Lawyer
  • Senior Phone Loser
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  • Posts: 53
  • 1337 13V3L: +2/-0
  • Better Call Saul!
    • Gerbil & Associates, LLP - Criminal Attorneys
Re: Legal Info - Relevant Harassment Laws
« Reply #4 on: August 14, 2013, 12:04:57 PM »
Also, ignorance of the law is no defense, so NOT having this information doesn't make you any less likely to get harassed by cops and prosecutors if they ever decide to target you. The only way to protect yourself and reduce the risk of getting busted just for joking around is to know the law up front and avoid doing things that could be seen as breaking the law later by others.

On a side note, I'd also like to mention that it is also advisable to avoid pissing off cops and prosecutors, as a general rule. Cops and prosecutors are the ones who decide whom to target, and their targeting decisions are largely based on the personal likes and dislikes of individual cops and prosecutors. If the cops or prosecutors in your jurisdiction don't like you, they are far more likely to target you. So don't piss them off unnecessarily. Let civil rights groups like the ACLU, EFF, and IntelligenceLaw.com stand up for your rights and take all the heat for pissing off cops and prosecutors by standing up to the abuses they commit from time to time.

- Saul
« Last Edit: August 14, 2013, 12:08:33 PM by Saul_Goodman »
Associate
Gerbil & Associates, LLP
Criminal Attorneys
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