Bill Schmalfeldt keeps saying that the Maryland Legislature has exempted Twitter from the misuse of electronic communication statute.Only in the fevered imagination of a screwball like the Cabin Boy could Md Criminal Law § 3-805 be construed as providing a safe harbor for harassment via Twitter. So where does Schmalfeldt get such an idea?
The Maryland Legislature meets for 90 days each year, and it publishes a public report of its activities called The 90 Day Report. In 2012, the email harassment law was tweaked, and that change was discussed in the 2012 issue of The 90 Day Report. The Cabin Boy has seized on one paragraph to try to support his idea of a safe harbor for harassment. Here it is, complete with his colorful highlighting.Note that this paragraph does not set forth the Legislature’s intent for the law. It gives an opinion of what the Attorney General thought the law might mean and what it “… may not include …” Now, consider what the Attorney General thought: that the law wouldn’t apply to social media messages unless they arrive on the page of the person the poster intended to harass. Thus, a harassing tweet about John Doe that contains his @johndoe account address and winds up on his @johndoe Mentions page on Twitter would be covered by the law under the Attorney General’s preliminary opinion cited in the report.
The best measure of what the Legislature intended is the actual text of the law. It was tweaked again in 2013, and the version effective as of 1 October is shown below. There is no mention, “explicit” or otherwise, of Twitter or any other social media. Read it for yourself.
There is no safe harbor for what Bill Schmalfeldt has been doing.
§ 3-805. Misuse of electronic communication or interactive computer service.
(a) Definitions. —
(1) In this section the following words have the meanings indicated.
(2) “Electronic communication” means the transmission of information, data, or a communication by the use of a computer or any other electronic means that is sent to a person and that is received by the person.
(3) “Interactive computer service” means an information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including a system that provides access to the Internet and cellular phones.
(b) Prohibited. —
(1) A person may not maliciously engage in a course of conduct, through the use of electronic communication, that alarms or seriously annoys another:
(i) with the intent to harass, alarm, or annoy the other;
(ii) after receiving a reasonable warning or request to stop by or on behalf of the other; and
(iii) without a legal purpose.
(2) A person may not use an interactive computer service to maliciously engage in a course of conduct that inflicts serious emotional distress on a minor or places a minor in reasonable fear of death or serious bodily injury with the intent:
(i) to kill, injure, harass, or cause serious emotional distress to the minor; or
(ii) to place the minor in reasonable fear of death or serious bodily injury.
(c) Construction of section. — It is not a violation of this section for any of the following persons to provide information, facilities, or technical assistance to another who is authorized by federal or State law to intercept or provide electronic communication or to conduct surveillance of electronic communication, if a court order directs the person to provide the information, facilities, or technical assistance:
(1) a provider of electronic communication;
(2) an officer, employee, agent, landlord, or custodian of a provider of electronic communication; or
(3) a person specified in a court order directing the provision of information, facilities, or technical assistance to another who is authorized by federal or State law to intercept or provide electronic communication or to conduct surveillance of electronic communication.
(d) Exception. — Subsection (b)(1) of this section does not apply to a peaceable activity intended to express a political view or provide information to others.
(e) Penalty. — A person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 1 year or a fine not exceeding $ 500 or both.