Friday, February 3, 2012

Anonymous in Fact

By Michael Tarrant

State v. Wyrocki, 2012 VT 7

Remember making a prank phone call as a child?  Did you ever repeatedly call the same poor soul over and over?  Well, if you did, odds are that you did it in the days before caller ID, and you did not give your name or identifying information to the person on the other end of the line.  After all, if your victim knew who you were, that would mean you could like, get in trouble and stuff.  

Of course saying this is only prelude to introducing a Defendant who illustrates the folly behind this basic premise.


On August 22, 2009, Victim received two telephone calls on her cell phone while at work.  In spite of the fact that nearly all modern cell phones display the number of incoming calls, this call merely displayed word, withheld.  Evidently without fear of telemarketers, Victim answered her phone, only to be greeted by a vitriolic torrent of profanities.  Despite Defendant’s initial cleverness at withholding her number from displaying on Victim’s phone, Victim was “absolutely” sure who was calling her—it was her son’s girlfriend with whom she had spoken with many times and whom was not particularly fond.

Victim ended the phone call, but about two minutes later received another call, again recognizing the voice as her son’s girlfriend.  This time, Defendant colorfully indicated her desire to see Victim hit a tree with her car and pass away.

What possibly could have sparked such outrage against Victim?  Well, unbeknownst to Victim at the time, her son (Defendant’s boyfriend) had been removed from Defendant’s apartment earlier in the day and taken to jail.  Apparently Victim had reported to the Vermont Housing Authority that her son was living with Defendant in contravention of Defendant’s housing agreement.

Defendant was also arrested and charged with violating Vermont’s statute against “disturbing peace by use of telephone or other electronic communication” (commonly known as the Reach Out and Bother Someone Act). 13 V.S.A. § 1027.

Following a bench trial, Defendant was convicted.  Before the judge reached the verdict, however, Defendant moved for a judgment of acquittal on three separate grounds: 1) that her conduct was protected by the First Amendment; 2) that her two phone calls were not “repeated;” and 3) that her two phone calls were not “anonymous.”  The trial court denied Defendant’s motion, ruling that the statute punishes conduct not words; that two phone calls is sufficient to be “repeated”; and that by not identifying herself and by blocking her phone number from displaying on Victim’s phone, the call was “anonymous.”

On appeal, Defendant makes four arguments: 1) the trial court erred in finding the phone calls “anonymous” because Victim knew Defendant’s identity; 2) the First Amendment does apply to Defendant’s situation; 3) the statute is overbroad because it punishes people from engaging in protected speech; and 4) the statute is unconstitutionally vague.  

The SCOV reverses, but because the SCOV concludes that Defendant’s phone calls were not “anonymous” under the statute, it leaves Defendant’s constitutional arguments for another day.

What exactly “anonymous” means under § 1027 is a question of first impression for the SCOV. Noting that this statute was enacted into law in 1967—long before the advent of caller ID—the SCOV declines to place any significance on the absence or masking of caller ID.

The SCOV considers the “dueling definitions” of “anonymous” offered on appeal by both Defendant and the State.

The State posits that a phone call is “anonymous” under the statute when “a defendant takes steps to conceal his or her identity.” Thus, the State concludes that Defendant’s calls were “anonymous” because she did not identify herself and used a phone that prevented the number from displaying.

Defendant argues that no call can be “anonymous” if the recipient knows who the caller is. Defendant accepts the State’s definition as partially valid, but argues that a court cannot only consider the caller’s perspective when determining anonymity. Thus, Defendant concludes that because Victim was “absolutely” sure that Defendant was the caller, the calls were not “anonymous” under the statute.

The SCOV agrees with Defendant—the issue here is not necessarily what “anonymous” means, but from whose perspective the anonymity is to be considered. Concluding that a caller’s anonymity depends—at least in part—upon the recipient’s non-recognition of the caller, “anonymous” under § 1027 depends on the recipient not knowing the caller. Because Victim was “absolutely” sure who was calling her, the SCOV has no problem concluding that Defendant’s phone calls were not “anonymous” for purposes of § 1027.

So in the end, it appears that Defendant has the last long-distance laugh as her ineptitude at keeping her identity secret is ultimately her salvation.  In an era where the internet and smart phones ensure that all information is public, perhaps the greatest crime is remaining successfully anonymous.  

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