We live in the 21st century where technology has allowed us to reach nearly anyone anywhere on the planet at any time. A text message can be sent from Detroit to Paris, France within mere seconds. An email travels from Grand Rapids to Beijing, China at the speed of light. Someone in Marquette can have a live telephone conversation with someone else in Buenos Aires, Argentina. This nearly instantaneous connection with people has been a great benefit to humankind. However, it also comes with the drawback that a person can harass, threaten or terrorize another person from anywhere in the world at any time. In Michigan, using a telecommunications service for that purpose is a criminal offense that can lead to fines, probation and incarceration.
Michigan law defines the following for the purposes of the malicious use statute:
- “Telecommunications” and “telecommunications service” mean “any service lawfully provided for a charge or compensation to facilitate the origination, transmission, retransmission, emission, or reception of signs, data, images, signals, writings, sounds, or other intelligence or equivalence of intelligence of any nature over any telecommunications system by any method, including, but not limited to, electronic, electromagnetic, magnetic, optical, photo-optical, digital, or analog technologies.” MCL 750.219a(6)(a). This includes telephonic and Internet service for landlines, pagers, cellphones, computers, tablets or smartphones and covers phone calls, text messages, social media access and email service from those devices.
- “Telecommunications access device” is broad and means any instrument or device that, “alone or with another device can acquire, transmit, intercept, provide, receive, use, or otherwise facilitate the use, acquisition, interception, provision, reception, and transmission of any telecommunications service” and/or “any type of instrument, device, machine, equipment, technology, or software that facilitates telecommunications or which is capable of transmitting, acquiring, intercepting, decrypting, or receiving any telephonic, electronic, data, internet access, audio, video, microwave, or radio transmissions, signals, telecommunications, or services.” MCL 750.219a(6)(b)(ii). This encompasses, but is not limited to, telephones, pagers, tablets, personal computers, pagers and any other device used as an accessory to these items.
MCL 750.540e(1) provides “[a] person is guilty of a misdemeanor who maliciously uses any service provided by a telecommunications service provider with intent to terrorize, frighten, intimidate, threaten, harass, molest, or annoy another person, or to disturb the peace and quiet of another person by any of the following:”
- “(a) Threatening physical harm or damage to any person or property in the course of a conversation or message through the use of a telecommunications service or device.”
- “(b) Falsely and deliberately reporting by message through the use of a telecommunications service or device that a person has been injured, has suddenly taken ill, has suffered death, or has been the victim of a crime or an accident.”
- “(c) Deliberately refusing or failing to disengage a connection between a telecommunications device and another telecommunications device or between a telecommunications device and other equipment provided for the transmission of messages through the use of a telecommunications service or device.”
- “(d) Using vulgar, indecent, obscene, or offensive language or suggesting any lewd or lascivious act in the course of a conversation or message through the use of a telecommunications service or device.”
- “(e) Repeatedly initiating a telephone call and, without speaking, deliberately hanging up or breaking the telephone connection as or after the telephone call is answered.”
- “(f) Making an unsolicited commercial telephone call that is received between the hours of 9 p.m. and 9 a.m. For the purpose of this subdivision, “an unsolicited commercial telephone call” means a call made by a person or recording device, on behalf of a person, corporation, or other entity, soliciting business or contributions.”
- “(g) Deliberately engaging or causing to engage the use of a telecommunications service or device of another person in a repetitive manner that causes interruption in telecommunications service or prevents the person from utilizing his or her telecommunications service or device.”
The penalty for a conviction of malicious use of telecommunications service can include a fine up to $1,000.00 or up to 6 months in jail, or both. MCL 750.540e(2). The offense is committed in Michigan if the communication is either initiated In this state or received in this state, and the offender can be prosecuted either at the point of origin or the point of termination.
This statute criminalizes pure speech even if the offender has no intention to follow through on any threats made. In People v Taravella, 133 Mich App 515; 350 NW2d 780 (1984), the defendant was convicted of malicious use of a telephone on accusations that he was making obscene or harassing phone calls. He appealed on the grounds that the statute was overbroad and vague. Specifically, “that the statute is overbroad in that it encompasses constitutionally protected speech and conduct within its scope.” Id at 518-519. In addition, it is vague in that it “fails to give fair notice of the proscribed activity.” Id at 519. The defendant believed that the statute fails to state what kind of speech is illegal, so a reasonable person can’t figure out if he or she is in violation of the law. The Michigan Court of Appeals disagreed and retorted that “[a]n individual of ordinary intelligence would not have to guess as to the type and scope of conduct prohibited under our statute, and giving the words their common, everyday meaning, we believe the statute provides clear warning of the proscribed conduct.” Id at 522. Since “[t]he state has a substantial interest in protecting the privacy interests of its citizens from the unwanted intrusion of verbal abuse”, then the statute is constitutionally sound.
However, the communications have to actually be made where the victim could see it with the intent to commit the proscribed conduct. The Michigan Court of Appeals vacated the respondent’s conviction for In re JP, __ Mich App __; __ NW2d __ (2019)(Docket No. 344812) where she was participating in group texts via Snapchat with three other girls fantasizing about killing a boy, his dog and his goldfish. Although the text messages were sent in poor judgment, there was no evidence that the respondent ever intended for the boy to see the text messages so there was no intent to “terrorize, frighten, intimidate, threaten, harass, molest or annoy” the boy. As a result, the prosecution should have failed.
There is no requirement that the communication must be targeted to the victim only. In People v Lenio, unpublished per curiam opinion of the Court of Appeals decided February 14, 2019 (Docket No. 339945), the defendant posted a number of messages on his public Twitter page responding to the Jewish victim’s post about a public shooting and made several anti-Sementic and Holocaust denial statements meant to insult and threaten harm to Jewish people. Although the public tweets did not address the victim directly, they could be read in context to show his intent to harm Jewish people generally and a reasonable person in the victim’s position can feel included in that group. As a result, the Michigan Court of Appeals upheld his conviction for malicious use of telecommunications service because the statements were intended to be “true threats” to a group that included the victim.
Malicious use of telecommunications service is a serious charge, and a conviction can impact your reputation, employment opportunities and even your freedom. A knowledgeable criminal defense lawyer in your corner can assert all the defenses available to you under the law to defeat this accusation. The prosecutor has the burden of showing beyond a reasonable doubt that you were even the source of a telecommunication message to the victim. If the victim cannot credibly testify as to the source of the communication, then conviction will be difficult. Perhaps another person had access to the defendant’s phone or computer and sent a malicious message without his or her knowledge. Even if the evidence against you is strong, a skilled lawyer can negotiate a resolution to a reduced charge that can protect your freedom. The stakes are simply too high to settle for anything less.
If you or a loved one is charged with any crime and need legal representation, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
