5 Reasons why the Paul Chambers decision was wrong

UPDATE: Please also read my followup post: 5 more reasons why the Paul Chambers decision was wrong.

Paul Chambers, the Twitter "bomb hoax" guy, was found guilty on Monday of sending a menacing message on Twitter and fined approximately £1000. This was his first criminal offence. I wrote about this in an earlier entry as I was preparing a letter of complaint to the South Yorkshire CPS. My complaint failed to deter the CPS from pursuing their charge under section 127(1) of the Communications Act 2003. It did however contribute to the defendant's decision to seek to have his initial guilty plea vacated. This was successful, to the surprise and renewed hope of many. Our hopes were dashed when district court judge Jonathan Bennett delivered his guilty verdict, which legal blogger Jack-of-Kent has described as a disgraceful and illiberal judgement. Here are five reasons, in no particular order, why I believe this decision is very wrong and very alarming.

1. This was clearly an expression of frustration and not intended to be taken seriously.
   A guy writes "Crap! Robin Hood airport is closed. You've got a week and a bit to get your shit together otherwise I'm blowing the airport sky high!!" to express his frustration that his flight might be cancelled due to about a half inch of snow. Well, that's the United Kingdom for you. You'd think nobody had ever seen the stuff. I know how he feels. Where I come from we would routinely drive our cars the day after a 3 foot blizzard. Getting back to the point, I haven't come across a single person apart from the judge who believes that Paul had malice in mind when he made this remark, no matter how ill-inconceived it may have been. I'll get to the judge in a minute.
2. The times we live in have no bearing on this or any other case.
   The existence of terrorism and its association with airports cannot alone serve as the foundation for perceiving a suggestive remark as a threat beyond a reasonable doubt. Anyone who thinks this is okay has willingly handed over his liberty for the sake of false security. Here is a typical response to Paul from a person called "HorseBooger" who clearly doesn't see what's at stake:
   
   
   
   

   Paul,
   I have no sympathy for you. You're an idiot and deserve what happen [sic] to you. You should have known better with today's climate.
   Now here you are whining about it. They should have horse whipped you and then put your dumb ass in jail.
   As for it ruining your career, I wouldn't worry about it. Sounds like you're to [sic] stupid to have had a career away [sic?].
   What I find even more surprising is there are other morons out there that support you.

   Well HorseBooger, if that is indeed your real name, I pity you. You have no idea what was taken away from you on Monday. People like this seem to universally hold the view that "this could never happen to me because I'm not a criminal". This is precisely what Paul would have said back in December if you'd asked him. Let me relate an extract from the book 'What Hitler Did To Us' written in 1938 by Eva Lips, a German woman whose husband was denounced to the gestapo by an informer. This excerpt was kindly provided by a commenter on the Guardian.
   
   
   
   

   I had become so intimidated that I no longer knew what was right and what was wrong... I was nervous with the postman, the milkman, the newsboy. He might be a spy who wrote down my words. In the trains there was a curious silence; no one ventured to talk to a stranger, still less an employee. laughing in the bus at the wrong moment might be dangerous. Photography enthusiasts did well to put their cameras aside; any landscape or group of people which one photographed might be used to prove one's intention of spying.. Everyone distrusted everyone else. No one ventured to express an opinion on anything.

3. The judge got his facts wrong.
   In his summation, judge Bennett explains that the prosecution must show that there was mens rea, a legal term meaning guilty mind. The act in and of itself is not sufficient to constitute an offence. Incredibly, the judge says that he is satisfied that the defendant was aware that his comment was menacing. He explains that he has heard testimony that the defendant is a man of good character and that the defendant denies any awareness that his comment would be taken seriously. He then goes on to say the following (emphasis is mine):
   
   
   
   

   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. Of particular significance is the fact that this "tweet" was posted to the public timeline, unlike most of his "tweets" in the time frame around this particular posting. This message would have been of particular significance to the lady known as "crazy colours" in Northern Ireland to whom the defendant was going to see on his air journey. He chose to post it in the public domain where in theory it was open for anyone to see, as indeed did Mr Duffield.
   
   I am therefore satisfied, so that I am sure, that the defendant sent the message via "Twitter" and it was of a menacing nature in the context of the times in which we live. Furthermore I am satisfied the defendant was, at the very least, aware that this was of a menacing nature and I find him guilty of the offence.

   Here the judge clearly fails to understand the mechanisms at play in the Twitter messaging scenario. One's Twitter timeline is either entirely public or entirely protected. Prior to Paul's arrest his tweets were public. Following the arrest they were locked. True, he could have sent a direct message, but you can only send that to a single person and he wanted his friends and other followers to see it too. Bennett makes a factual error here that I believe will result in a successful appeal.
4. Twitter, by its unique form, encourages off-the-cuff remarks without much thought.
   I understand that people who have never used Twitter might not realize how very dynamic it is. It is not like Facebook. Nobody who uses Twitter thinks that this was a good judgement. Twitter has become a way of sharing your semi-private thoughts with a small audience and with the hidden potential of reaching an ever wider audience. But they are just thoughts. It becomes a habit. This is because the available text is so short. More than any other medium, Twitter has really changed the way that people communicate. And it feels like you're in the same room with your friends. Conversations involving various levels of celebrity seem as though they are happening on the other side of the room. It lulls you into sharing more of yourself than you might otherwise. I think this is wonderful. However, it is all too easy to fall into the trap that Paul Chambers did. Here are a couple of examples:
   
   
   
   
   
   • Me (August 2009): "If I hear one more politician claim that the US govt health plan will "unplug grandma" I'm gonna get on a plane and go unplug theirs myself" - possibly menacing.
   • Armando Ianucci (before flying to the Oscars): "At the airport.Got my Oscar tickets in my pocket, my girl by my side,and 3 packets of heroin hidden up my anus.What could possibly go wrong?" - probably would have been taken into a back room and strip searched had the Heathrow authorities been alerted.
   
   There are many others.
   
5. The police don't get to have a new tool for detecting and preventing crime just because we have a new tool for expressing ourselves.
   I concede that these conversations and monologues are not truly private, but I still feel that they should be treated as such for the purposes of establishing possible criminal behaviour. It's like with a search warrant. The warrant needs to specify what can be searched and what the police are looking for. The implication is that there is already cause to believe a crime has been or is being committed. It's hard for some people to accept, but this is a bit like searching without the proper warrant. You might find something of interest by accident, but unless it's been obtained properly it should have no value as evidence. Granted it might necessitate an investigation, but the police really must use common sense. Bear in mind, we are not any less safe now that there is Twitter. There could be millions of telescopic microphones dangling from the sky and picking up unguarded conversation. Imagine if it were as easy to process voice as it is to process text. I'll bet law enforcement would love that. Would you think it was right to use such speech against a person? Just because we have a medium that allows unguarded speech to be shared with a known group of people and to be spied by an unknown group, should we be content to monitor that for possible illegal activity? And that's really what it is, isn't it? Spying. Eavesdropping. It hasn't made us any less safe by its mere existence, so why should it be scrutinized in this way.

Paul has decided that he will appeal this decision. I am glad. The verdict is bad for all of us who publish and broadcast ourselves online. Those who don't understand free speech may one day find themselves on the receiving end of this abuse of law enforcement power. Then perhaps it will begin to dawn on them. If the appeal is successful, and I'm confident it will be, then they may be allowed instead to carry on in blissful (and in some cases spiteful) ignorance.


Links

• If you would like to donate to Paul's legal expenses, you can find out how here: http://twitter.com/twjoketrialfund and here: http://cripesonfriday.tumblr.com/post/587845442/twitter-joke-trial-fund. Any leftover proceeds will be donated to civil liberties charities. 
• There is also a Facebook group in support of Paul: http://www.facebook.com/group.php?gid=362215453264

Libertarian, que moi?

All this recent business with Paul Chambers and the Crown Prosecution Service has caused me to have a good think about what my beliefs are. Anyone who really knows me would probably say that I'm a progressive thinker. I don't like to use the term "liberal" because I think its meaning has been adulterated. At any rate, liberals of today are not what liberals were 100 years ago. There's classical liberalsim and there's social liberalism. These could scarcely be more different. If you don't believe me, have a look. But for certain, liberal does not mean libertarian. Unless maybe what you mean is civil libertarian. Civil libertarians strongly support a bill of rights that are unalienable and protect the freedoms of the individual against an overbearing state. Yeah, I'm into that. But I also believe in a welfare state. I believe that government can and should institute programs that aim to address social and economic inequalities. I believe that poverty and exploitation are problems that need to be tackled by everyone together. I believe that everyone has a right to basic affordable health care and that society ought to recognize that when a man is down we all suffer as a result. So you see, I am not a libertarian. I am a social democrat. I believe in civil rights, just not that you have the right to keep your wallet shut.

CPS v Paul J Chambers

This post is of a rather serious nature. It concerns the case of a man who was arrested after posting an update to Twitter that was interpreted as a bomb hoax. See the story. Here is a legal dissection of the case. I believe that the actions of the police and the Crown Prosecution Service are outrageous and threaten to chill protected free speech. I intend to lodge a complaint with the CPS. Here is what I believe to be my final draft.

UPDATE: A slightly modified version of the text below has been sent to the CPS and other interested parties. If you wish to complain as I did, you can write to:

Crown Prosecution Service
Greenfield House
32 Scotland Street
Sheffield
S3 7DQ

or email info.southyorkshire@cps.gsi.gov.uk. The chief crown prosecutor is Naheed Hussain.

ANOTHER UPDATE: There is now a Facebook group dedicated to this case:
ANOTHER ANOTHER UPDATE: Text of letter below now matches that sent, including Executive Summary.

----%<----
Executive Summary
This letter constitutes an official complaint to the South Yorkshire branch of the Crown Prosecution Service for its handling of the case against Paul J Chambers of Balby, Doncaster. Mr Chambers was arrested after posting an update to the social networking site Twitter that was interpreted as a bomb hoax. The defendant, Paul Chambers, was arrested by South Yorkshire police under section 51(2) of the Criminal Law Act 1977 for posting an update to his Twitter feed with a comment that was construed as a threat to plant a bomb at an airport. He was then later charged by the Crown Prosecution Service “in the public interest” with an offence under section 127(1) of the Communications Act 2003, which unlike the earlier act does not require the Crown to discharge a burden of proof as to the suspect’s intent. Although the defendant was not at the time of his arrest personally known to me and is now only known to me through internet communications, I am nonetheless outraged by the actions of the authorities in this case. I intend to show that the Crown’s interpretation of this law is inappropriate and threatens to chill protected free speech of all kinds. Letter of complaint begins overleaf.

To Whom it May Concern:

This communication comes to you by way of electronic mail and post. In January of this year, one Paul J Chambers of Balby, Doncaster was arrested by South Yorkshire police under section 51(2) of the Criminal Law Act 1977 for posting an update to his Twitter feed with the following content after snow storms forced the closure of an airport: "Robin Hood airport is closed. You've got a week and a bit to get your shit together, otherwise I'm blowing the airport sky high!!". I am informed that this incident has resulted in the suspect being suspended from his employment pending an investigation and banned for life from Doncaster's Robin Hood airport. The ban was subsequently lifted; however, I am unaware of any conclusion to the employment disciplinary action. A police statement was later issued:

“There was huge public and media interest in this case. Whilst the investigation and collation of evidence was straightforward, due to the wide-spread interest in the use of Twitter in this way, the case was referred to CPS to make the decision on disposal. Based on this “public interest test” it was not appropriate for police to make this decision. The CPS themselves could have decided on a caution, but based on the evidence and the public interest they decided to charge in this case, a decision that the police feel is appropriate.”

I am further informed that the Crown Procescution Service has elected to charge and prosecute Mr. Chambers under section 127(1) of the Communications Act 2003, which 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."

I am led to believe that this provision is based on an earlier provision in the 1984 Telecommunications Act which was intended to deal with nuisance telephone callers. The application of the 2003 act over the 1977 act is significant because unlike the 1977 act, which would require the Crown to discharge a high burden of evidential proof that the defendant intended to instill in a recipient the false belief that he intended to plant a bomb, the 2003 act has no similar burden for proving intent. In a statement to Allen Green of thelawyer.com, The Crown have remarked "Section 127 of the Communications Act 2003 was considered to be the correct charge in the particular circumstances of the case. Under 127(1) an offence is committed where suspect sends by means of a public electronic telecommunications system a message or other matter that is “grossly offensive, or of an indecent obscene or menacing character”. A message can be any of these (rather than having to be all of them) and the message in this case was clearly of a menacing character. A more serious charge under section 51 Criminal Law Act 1977 was considered but was not felt to be appropriate as there was no evidence that he intended to induce in the recipient a false belief there really was a bomb."
These are the facts of the case as I understand them. Please either affirm or dispute in your reply.

I find it wholly inappropriate and highly objectionable that the Crown have applied such a wide interpretation to a statute that was designed to deal with one-to-one communications. When this legislation was drafted it was perhaps felt that the burden of intent was unnecessary, as in one-to-one communications the intention of the caller or sender can be inferred. The intention of a message sender in a broadcast style communication is much less clear and is therefore highly dependent on the context. The application of the Communications Act in this case has significant and wide ranging implications for the use of electronic communications that are likely to have a chilling effect on protected free speech.


In fact the implications are terrifying. It is remarkable how easily one can fall afoul of this interpretation of the law, with no evidential safety net to protect oneself. Please correct me if I'm in error. I do believe that your interpretation would have held that the BBC committed an offence in 2005 when it broadcast over a public communications network a performance of Jerry Springer the Opera. Indeed a significant proportion of the British population found this broadcast to be indecent and obscene if not grossly offensive. Likewise, the Press Complaints Commission received a record number of complaints after Jan Moir published in the Daily Mail a highly inflammatory article concerning the death of Stephen Gately. The article was in particularly poor taste and offensive to the family and friends of the deceased as it was published prior to his burial. This was simultaneously published in the online edition. It is clear from the context that Mr Chambers' remarks on Twitter were not intended to be taken literally but were simply a literary figure of speech known as hyperbole, intended to show his exasperation at the likelihood of his flight being canceled.

I fear I may have stepped over the line myself when in August of last year I became exasperated by the US Health Care arguments and tweeted "If I hear one more politician claim that the US govt health plan will "unplug grandma" I'm gonna get on a plane and go unplug theirs myself.". Was this a menacing message? I doubt any reasonable person would interpret this remark as a threat that I intended to carry out. For the record, it was not. If on the other hand I had sent a similar private message or a reply in the second person to Senator Chuck Grassley of the Senate Committee on Finance, then I think you would agree that this could have been rightly interpreted as a threat. This is the substantive difference between the two forms of communication. One is impersonal while the other is personal. One is nondirected while the other has a clearly intended recipient. The Crown's failure to grasp this fundamental difference reveals a woeful ignorance of the medium. The fact that Chambers used the second person should not confuse the reader into believing that the communication was directed. This is a colloquialism. Chambers makes the pretense of speaking to Robin Hood airport staff; however, he does not intend for this message to ever reach such a recipient or for it to be taken literally. We now find ourselves in the position of having to rely on expert testimony from English professors, a clear indication that something is amiss. After the Chambers case was publicised I decided to remove a different update I'd recently posted for fear that its intent might be misconstrued. Thus my free expression was effectively chilled.

If as you claim a message or other matter may be either grossly offensive or of an indecent obscene or menacing character without having to be all of them, and that it is not necessary for the suspect to have intended such, then we all have reason to be afraid. You claim that it is in the public interest to prosecute this case due to the widespread interest in the use of social networking in this way. I am of the exact opposite opinion. It is in the public interest that the Crown drop these charges immediately and reconsider the wisdom of applying the Communications Act in this way. Nobody has the right to not be offended. Willful harassment and intimidation are special cases, but barring that a person has as much right to cause offence as take offence. If that were not so then there are very many well known comics and artists who would likely be facing criminal prosecution. Nor can a nondirected comment made for exaggerated effect reasonably be regarded as menacing. Certainly the intention of the sender cannot be disregarded in any case. The police and the Crown must use discretion when deciding to charge for such an "offence" in order to avoid what can only be deemed a miscarriage of justice. I am informed that Mr Chambers attended a hearing at the Doncaster Magistrates Court in February where he pleaded guilty and is now awaiting sentencing. An otherwise law abiding citizen now finds himself carrying a criminal conviction. The defendant is not known to me. Presumably the guilty plea served to facilitate the return of some semblance of normality to his life. I find this terribly unfair.

Your sincerely,
Matthew Flaherty


Edit: made some content changes from inital draft.

LaptopMums

Okay, so I haven't been blogging much. Sorry about that. Not that I imagine I have any readers. If you are reading this, please check out this new blog site called LaptopMums that was created by my wife and some of her online friends. It is a response to Gina Ford's rather bold step of setting herself up as the voice of UK mothers in the arena of politics. It makes for interesting reading even if you're not a mum in the UK or don't own a laptop.

Home made Mac LC to VGA video cable

I still haven't got around to fixing the heating in my car. It's looking like a lot of time and effort and I can live with it the way it is for a while longer. In the meantime I've had some other projects on the go. I've been clearing out lots of old junk and giving most of it away. One of these is a 266 MHz G3 PowerMac desktop model dating from 1997 which had once belonged to my wife. Because I'm consciencious, I wanted to make sure it's up and running before giving it away. The problem was that it has the old LC15 video output and I don't have an old Mac monitor, nor do I have a suitable VGA adapter. Since this is a freebie job, I also don't really want to buy one. So I decided to make one. I found a lot of good info on the web and particularly followed the advice given here:

http://home.pacific.net.hk/~johnb/mtv.html

I also checked wikipedia for the pinouts of the VGA HD12 connector. The article for that is here:

http://en.wikipedia.org/wiki/VGA_connector

I'm ashamed to say it took me a couple hours to make the cable. This is partly because I had to tear old cables apart and it took some time to find a suitable DB15 connector. Partly because the soldering was a bit fiddly. In the end I used an old game port MIDI interface cable end and that worked nicely. To be honest I wasn't confident the thing would actually work, but it did. I can get up to 1024x768 resolution on my 17" LCD display supposedly with thousands of colours; however, only the green signal is coming through. That might be because pins 5-8 on the VGA side appear to be wired to common ground and so I couldn't wire up separate grounds for the colour channels like the diagram suggests. Maybe later I'll see if I can get the VGA connector apart and change the wiring on it. On the other hand something may just have come loose or made improper contact when I packed the wiring inside the end. For now though the result is good enough to setup a new larger hard drive and install the system and other software.

 

My car

My car was free. I got it from Freecycle and I'm very grateful to the previous owners. It cost me a little bit of money to get it through the m.o.t. Really low mileage and all in all not bad considering it had been sat in a driveway for four years. But it's sort of a piece of crap really and I've had a few problems with it. For instance the heater doesn't work. I haven't yet figured out why. I like to work on cars and computers and all sorts of other things so I've been quite game for taking this on. I drained the radiator and flushed the engine. In the process I also replaced the thermostat which I figured couldn't hurt. Put it all back together and poured in new coolant/water but no difference. Well, maybe a slight difference. The air from the blower gets to be about room temperature after the engine is completely warm, but that might just be because the engine seems to get a bit hotter now after having changed the thermostat which upon closer examination wasn't closing fully. I'm thinking the problem is in the heater control unit itself. Probably it's just the sliding switch to open the heater circuit. I'll be taking a look at this at the weekend.

This is my new blog.

I suppose I ought to write something.

There.