Email - flame vs threat

[Steve Hoffman]

E-Mail Trial May Set U.S. Precedent

NY Times 1/21/98


When the second Federal trial of a man who sent an angry e-mail
message to Asian university students starts in Santa Ana, Calif.,
next week, the jurors will be addressing a tough question: What kind
of behavior is appropriate - and legal - on the Internet? 

Richard Machado, a 20-year-old Los Angeles man, was charged with 10
counts of civil rights violations after he sent an e-mail message to
59 students with Asian-sounding names at the University of California
at Irvine. His case is the nation's first Federal prosecution of an
alleged hate crime on the Internet. 

The issue of whether Machado's message was a real threat or a
"classic flame" serves as the focus of a case that will help define
how authorities respond to threats on the Internet. Prosecutors are
using the case to gauge whether juries take e-mailed threats
seriously. 

"We need to decide what it takes to successfully prosecute a case
like that," said Assistant U.S. Attorney Michael J. Gennaco,
co-prosecutor on the case and a specialist in civil rights cases.
"There's always a gray area between distasteful messages and threats.
There's a line to be drawn from what we can successfully prosecute.
The lessons learned from this case will guide our office." 

Machado's message said, in part, "I personally will make it my life
carreer [sic] to find and kill everyone of you personally." The
e-mail was signed "Asian Hater." Machado could face a maximum of 10
years in Federal prison if jurors convict him on the charges of
interfering with the students' civil rights. 

The first trial ended in mistrial when jurors deadlocked in November,
voting 9 to 3 for Machado's acquittal. They were snagged on the issue
of whether Machado intended the e-mail as a prank or as a serious
threat. 

Machado's lawyer, Deputy U.S. Public Defender Sylvia Torres-Guillen,
depicted her client in the first trial as a distraught teen-ager who
played a dumb prank. The defendant, who was 19 when he sent the
message, flunked out of the university after his oldest brother was
killed in a carjacking in Los Angeles. The younger Machado was the
first in his family to go to college and did not tell them he had
flunked out. So he continued to have another brother drive him to the
campus every day. Machado sat in the computer lab each day, and in
September 1996, he sent the message. 

This case serves as a gauge, Gennaco said, because of the large number
of people who received the message and because the message contained a
clearly stated threat. The outcome will give guidance to Gennaco's
office in Los Angeles on whether to proceed with prosecutions in three
or four more allegations of threats on the Internet. 

Nationwide, Justice Department officials are investigating similar
accusations. The Machado case is being watched from Washington for
the potential message it sends to the public. 

"The issue is, if there's an acquittal, will it embolden people?"
said a Justice Department official in Washington who spoke on
condition of anonymity. "One thing that will be helpful [in the event
of conviction] is that word will get out that people have a place to
take complaints. The contrary message could get out that there's no
place to take complaints." 

If the jury decides Machado's message was a threat, First Amendment
protections of free speech would not apply. Because of that
component, advocates of free speech in cyberspace have not jumped to
Machado's defense. 

"It's not a case of somebody being prosecuted for flaming," said Mike
Godwin, a fellow at the Media Studies Center in New York and staff
counsel for the Electronic Frontier Foundation, a San Francisco-based
organization that advocates for civil liberties on the Internet. "If
he'd put it up on a Web site and somebody prosecuted him, I'd probably
be on the plane to defend him." 

The distinction, Godwin said, is that the message was delivered to
people personally. That distinction, he said, makes the Internet
component of the case secondary because the action was like sending a
threatening letter in the mail. 

Another expert said the significance of the case lies in how the
system responds to such actions. Carey Heckman, a consulting
professor at Stanford Law School and co-director of the Stanford Law
and Technology Policy Center, said the case is a sign of society's
adjustment to technology. 

"With new technologies, how do we gauge new behavior on it? How do we
evaluate it?" he said. "I think on the Net, there are those who take
the position that somehow e-mail is a different thing. Where should
you place an e-mail on the spectrum of what you should reasonably be
concerned about?" 

Perhaps people don't take e-mail as seriously as a death threat by
phone, Heckman said. He considered the nine jurors in the first trial
who voted for acquittal. 

"There's something here with these nine citizens who are not thinking
of this situation with the same seriousness," he said. 

The remaining issue, in the event of a conviction, would be assessing
appropriate punishment. Godwin, while he sees merit in the
Government's case, described the prosecution of Machado as
"opportunistic." 

"It's quite clear that some of the speech he was engaged in was
wrong," Godwin said, "but I don't know if sending him to prison for
10 years is the answer." 

Copyright 1998 The New York Times Company 


* * * * * * * * * * * * * *  From the Listowner  * * * * * * * * * * * *
.	To unsubscribe from this list, send a message to:
majordomo at scn.org		In the body of the message, type:
unsubscribe scn
END