Can You Hear Me Now? How About Now? by Michael Goldstein, Esq.

Did you know that misuse of your cell phone can land you in jail? Well it is true. David, Yas of Massachusetts Lawyer’s weekly reported in his “From the publisher” column this past week that a man dialed the wrong number on his cell phone by accident. The recipient of this call was his ex fiancée whom had a restraining order against the caller. The caller left a short message that he claims was intended for another person with the same first name. The caller simply highlighted the wrong name on his speed dial. His fiancée reported the message to the police, and the caller was arrested, and actually convicted of a violation of the restraining order by a trial judge. This holding landed the caller in prison. Later an appellate court overturned the verdict. The appellate court believed the caller did not intend to call the ex fiancée. The court then held that an accidental call is not an intentional violation of a restraining order.

Under the Massachusetts General Laws, Chapter 209A, section 3(b): a person who has left a residence as a result of abuse, and has a restraining order based on MGL 209A, is ordered to refrain from contacting the plaintiff, unless authorized by the court, whether the defendant is an adult or minor.

The statute on its face is clear that the caller should not have contacted his ex fiancée. However, the statute also has been interpreted to require the contact to be an intentional act and not one of accident, mishap or true mistake. It would seem that if the message one leaves on a voice mail is clearly not intended for the recipient, based on the context of the message, than a court should not find the defendant in violation of Chapter 209A, section 3(b).

This case at the trial level could have opened up a Pandora’s Box of technological blunders. How often have you sent an email to the wrong person, because you simply typed in the first name in Microsoft Outlook, and the wrong email appeared in the sent folder, to which you did not notice? What about emails that are set on a long time deferral, where you know you want an email to go out while you are on vacation, so you set it to send months in advance; what about those automatic e-birthday cards that you set to go out months if not years in advance. Can you imagine how many cyber law trials could stem from such a holding? It is fortunate for all of us that the appellate court upheld the interpretation that intent must be proven to convict a defendant of a violation of a 209(A) restraining order.