As many readers are aware, I’ve been documenting my recent experiences at a suspicionless internal Homeland Security checkpoint located near mile marker 146 on SR86 in Southern Arizona. I’ve also been reporting these experiences to readers of this blog amongst other places.
As a result of documenting these encounters and reporting on them, there are currently several efforts underway by various individuals and organizations to either shutdown my website or force me to remove content previously posted. This post provides information regarding one such recent attempt.
On or about February 14th, an individual identified as Chris Parker sent an email to my service provider attempting to force the shutdown of my website because of content related to a suspicionless Homeland Security checkpoint active along SR86 in Southern Arizona..
Mr. Parker makes several specious claims in his email regarding alleged illegal content but never fully identifies himself, his affiliation, or why he feels he has standing to challenge the content of my protected communications.
An attorney, acting on behalf of my service provider, responded to Mr. Parker’s attempt to interfere with the free exchange of information and ideas on this blog by setting the legal record straight.
Below appears the legal counsel’s response to Mr. Parker’s frivolous allegations followed by Mr. Parker’s original complaint.
My service provider has my thanks for its willingness to objectively analyze the frivolous complaint it received and take the appropriate action. If only more companies refused to be intimidated in such a way and conducted business in this manner.
(all links appearing below were added by me)
Dear Chris Parker,
Thank you for writing to BetterThanYours.com and expressing your concerns.
I’ve been asked to review this matter, and to provide you a response.
I must point out that, though § 111 of Title 18 criminalizes certain conduct which “interferes” with some performances of official duties, a little bit of research would have made clear to you, that courts have held that FORCE is an essential element of such a crime. See for example, Long v. United States, 199 F.2d 717 (4th Cir. 1952). While a threat is sufficient, the threat must reasonably cause the protected subject to anticipate bodily harm while performing protected duties, and typically requires, at minimum, the apparent present ability to execute such threat, or with menacing gestures, or in hostile company or threatening surroundings. For more details, please see United States v. Walker, 835 F.2d 983, 987 (2d Cir. 1987), and Gornick v. United States, 320 F.2d 325 (10th Cir. 1963).
State law parallels the federal law closely. See for example, State v. Tages (App. 1969) 10 Ariz.App. 127, 457 P.2d 289.
Since I was unable to locate any evidence of the use of force against anyone who could be a public official (excepting the conduct of those public officials), nor was I able to locate anything that could be interpreted as a threat of force with the apparent present ability to execute such threat (or menacing gestures, or hostile company, or threatening surroundings, again excepting the conduct of those public officials), I was unable to conclude that the owner of checkpointusa.org has violated state or federal law.
Perhaps your meaning was that the publication of audio, video, or photographic recordings of public officials present on a public road, could itself be threatening. Fortunately, the rights protected by the First Amendment to the United States Constitution and the Arizona Constitution, Art. 2 § 6, protect such publication. See for example, Citizen Publishing Co. v. Miller (2005) 210 Ariz. 513, 115 P.3d 107, which explains the difference between protected speech and true threats.
While it would be cynical to think you intended to suppress the free speech rights of another by attempting to intimidate their web hosting provider, I’d rather believe that you were merely overzealous and mistaken.
Please write again should you have any further concerns.
— Michael Kielsky
Counselor & Attorney at Law
Attorney for Polydata One (dba) BetterThanYours.com
Legal Notice & Disclaimer: http://attorney.kielsky.com/?disclaimer
/cc: checkpointusa.org owner; owner’s attorney
From: chirs [mailto:firstname.lastname@example.org]
Sent: Thursday, February 14, 2008 10:44 PM
Please review this website https://www.checkpointusa.org/blog/ wich I believe to be one of your customers… This guy keeps publishing Agent’s pictures, names, and personal info without permission. This is a crime in Arizona. He is also in violation of 18 USC 111, Which is basically “Impeding certain officers or employees. Whoever … intimidates, or interferes with any person … while engaged in … the performance of his official duties shall be fined … or imprisoned …”
Acording to your Service Agreement Sec 6.d.i (higlighted below in red) He is in breach of his agreement and is subject to removal…
6. LIMITATIONS ON YOUR USE OF OUR SYSTEMS, SOFTWARE, OR SERVICES
You may access or use Polydata’s systems, software, or services as provided herein, but You may not access or use Polydata’s systems, software, or services, for any other purpose, or in any other manner. You agree that You will not use Polydata’s systems, software, or services, or any part thereof, in connection with any illegal activity, or storing or transmitting pornographic materials (irrespective of the material’s legality), or storing or transmitting gambling products, services, or data (irrespective of the material’s legality), or generating or transmitting unsolicited, commercial e-mailing (i.e., SPAM), or any illegal or unauthorized access or attempt to access other computers or networks (i.e. hacking), or distribution of computer viri (viruses) or similar activities, be they destructive or otherwise. By agreeing to be bound this Agreement and Your use of Polydata’s systems, software, or services, You explicitly promise that You will never recklessly or knowingly store, submit, publish, display or transmit any illegal, copyright-infringing, pornographic, gambling, SPAM, hacking, cracking, virus, virus-infected, worm, trojan-horse, defamatory, inaccurate, abusive, or threatening material on or by the use of Polydata’s systems, software, or services.
Except as otherwise expressly permitted herein (if at all), any of the following, without limitation, constitute a material breach of this Agreement:
1. Your failure to comply with the terms of this Agreement;
2. Using Polydata’s systems, software, or services, or any part thereof, in contravention of then then-current version of this Agreement;
3. Your failure to pay Your agreed-upon fees when due;
4. Your use of Polydata’s systems, software, or services, or any part thereof, in connection with:
1. Any illegal (violating any federal, state, or local law, rule or regulation) activity; or
2. Storing or transmitting pornographic materials (irrespective of the material’s legality); or
3. Storing or transmitting gambling products, services, or data (irrespective of the material’s legality); or
4. Generating or transmitting unsolicited, commercial e-mail (i.e., SPAM); or
5. Illegal or unauthorized access to other computers or networks (i.e., hacking); or
6. Distribution of computer viri (viruses), computer worms, computer trojan horses, or similar activities, be they destructive or otherwise; or
7. Abusive, defamatory, libelous, or illicit purposes; or
8. Other activities, whether lawful or unlawful, that Polydata determines, in its sole discretion, to be harmful to its other customers, operations, or reputation;
thank you for reviewing this matter and I hope you will remove his websight due to the illegal nature of its content…