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People of the State of New York v. Alan Munn

179 Misc.2d 903 (Criminal Crt., City of NY, February 9, 1999)

Court holds that posting a threatening message to an Internet newsgroup, which is read by the person threatened, constitutes Aggravated Criminal Harassment in the Second Degree in violation of New York Penal Law Section 240.30.  The Court accordingly denied defendant’s motion to dismiss this charge, which accused defendant of posting a death threat against complainant on an Internet newsgroup.

New York Penal Law Section 230.40(1) provides:

A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she:

1. Communicates, or causes a communication to be initiated by mechanical or electronic means or otherwise, with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm.

The Court held that threatening communications made via newsgroup postings could trigger liability under the Penal law.  Said the Court:

[t]he novel issue raised in this motion is whether a harassing and threatening message posted on an Internet newsgroup is a type of communication prohibited by Penal Law section 240.30(1).  The court finds that such a communication is encompassed by section 240.30 …

To establish that a communication made on, or over, the Internet falls within the ambit of the statute, the Court held that two criteria must be met.  “The communication must be one initiated by electronic or mechanical means attachable to telephones or be a written form of communication.  Secondly, the communication must have been one directed at the complainant.”

The Court held that the communication at issue – a threatening communication posted on an Internet newsgroup – met both criteria, and hence was subject to the prohibitions of the statute.  First, the Court held that the communication was both in written form – because it could be printed – and one that was initiated by means of a telephonic communication.  Second, the Court held that the communication was directed at the complainant, because it threatened him by name.  Said the Court:

A newsgroup message generated by means of a computer over the internet is one that requires the use of a mechanical or electronic device, namely a computer.  The message must be initiated by means of a telephonic communication with the network community.  The communication is then written across a computer screen, and capable of being printed.  Thus, the message was initiated by electronic or mechanical means as sated in the statue and is also one that generates a written communication.

Furthermore, the message was one directed at the complainant.  The defendant’s alleged posting of his message on an Internet newsgroup with the complainant’s name included then transformed the communication to one not only intended for the general public, but specially generated to be communicated to the complainant.  Indeed in this case, the complainant himself read the message on the computer screen, and became annoyed and alarmed.

The Court accordingly denied defendant’s motion to dismiss the charge against him.

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