James Tobin was found guilty in the NH phone-jamming case on two different counts related to harassing phone calls.
His defense attorneys worked hard to convince the judge* that “harassing” phone calls must be intended “to instill fear”–therefore multiple hangup calls to the Democrats were not “harassing.”
What James Tobin okayed, and his co-conspirators carried out, were not crank calls or threatening calls but a massive denial of service (DOS) attack on the Democrats’ phones on Election Day. The possibility of such an attack was, in 2002, something brand-new. Telemarketing technology could be re-purposed to strike down your political opponents’ communications, in a close race, on Election Day, all day long.
And, AFAIK, such a strategy isn’t illegal, in 2005, so long as you do it without getting tripped up by laws that were set up to outlaw quite different behavior.* * In 2005, such activity would be much easier. Just one tech-savvy Skyper could automate his own barrage of calls to tie up the Democrats’ (or Republicans’) phones on Election Day.
Against your Constitutional right to a free and fair election? Absolutely–but is it against the law?
In the recent Bush-wiretapping scandal, new technology made it so easy and so tempting to step around the Constitution.
The breath-taking reach and possibilities of using telephone denial-of-service against political opponents must surely have made a real impression on James Tobin in 2002. I hope Federal prosecutors will press on to discover just how high up the political foodchain he carried this news. And I hope Federal legislators will make sure that such attacks are, as they should be, completely illegal.
* Argument stated several times in “Amended and Supplemental Proposed Jury Instructions of James Tobin” (CR. 04-216-01-SM)–for example, on page 57, “Proposed Jury Instruction No. 35.”
* * The US Department of Justice Cybercrime Unit helpfully posts online a number of exploits now possible but not covered by current laws. Their plea for improved federal oversight of cybercrime was made on March 5, 2000, in the last days of the Clinton administration. More recent postings, however, show a new DOJ focus on “piracy” and praise for the Patriot Act (surely our tax dollars shouldn’t be spent to influence legislation.)