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Create an e-annoyance, go to jail
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June 28, 2004 -
Annoy.com free to bother Netizens
September 24, 1998 -
States mull harassment laws
January 31, 1997
Figuring out exactly what Congress did takes a few minutes. But it's not too difficult.
First, go to the text of the legislation and search for Sec. 113. Note how Sec. 113. amends existing law by changing the definitions in 47 U.S.C. 223(h)(1).
Before the new law took effect last Thursday, 47 U.S.C. 223 explicitly said it "does not include an interactive computer service." The changes override that for the "to annoy" section and now say it applies to the "Internet."
Q: So what does the rewritten law now say?
The section as amended reads like this: "Whoever...utilizes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet... without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person...who receives the communications...shall be fined under title 18 or imprisoned not more than two years, or both."
Q: But that section is titled "Obscene or harassing telephone calls." Doesn't that mean only voice over Internet Protocol, or VoIP, is now going to be covered by the law?
That's one interpretation. But that's not how Congress actually wrote the law, however, and precise wording matters.
Eye on Washington
If politicians wanted to limit the law to VoIP, they could have followed what they did in other bills and actually used the term. They could have also limited the "annoy" requirement to contacting an individual person.
But they didn't. The law instead covers any types of "communications that are transmitted, in whole or in part, by the Internet"--not just VoIP conversations. Also, it covers any person "who receives the communications" rather than a narrower definition that could have been written as "an individual intentionally targeted as the recipient of the communications."
At the very least, Congress has an obligation to clear things up and fix the ambiguities in this law.
Q: Someone has been annoying me on the Internet, and it's getting serious. What can I do?
Keep in mind that the new law has only criminal sanctions, so you can't sue someone directly (unless they're already violating other laws). Also remember that it only applies to a person who is intentionally annoying "without disclosing his identity."
You'd have to contact your local FBI office or U.S. Attorney. But don't be surprised if they place you way down on their priority list.
Q: Some people, including law professor Orin Kerr, say the existence of the First Amendment means we shouldn't worry.
Kerr says that "if speech is protected by the First Amendment, the statute is unconstitutional as applied and the indictment must be dismissed... prosecutors know that they can't bring a prosecution unless doing so would comply with the Supreme Court's First Amendment cases."
That's correct as far as it goes. But it's not the whole story, because it amounts to trusting what lawyers call prosecutorial discretion.
The U.S. Justice Department made the same argument in its unsuccessful defense of the Communications Decency Act. Prosecutors claimed that the CDA was constitutional because the Justice Department would never apply it in an unconstitutional manner.
Judge Dolores Sloviter rejected that argument, writing: "The government makes yet another argument that troubles me. It suggests that the concerns expressed by the plaintiffs and the questions posed by the court reflect an exaggerated supposition of how it would apply the law, and that we should, in effect, trust the Department of Justice to limit the CDA's application in a reasonable fashion that would avoid prosecution for placing on the Internet works of serious literary or artistic merit. That would require a broad trust indeed from a generation of judges not far removed from the attacks on James Joyce's Ulysses as obscene."
Q: If the law does violate the First Amendment, why would Congress enact it?
There's no good answer to that question. When our elected representatives were drafting this law over the last few months, they could have cleared things up.
The law criminalizes certain acts intended to "annoy, abuse, threaten, or harass any person." Deleting the word "annoy" from that lineup would probably have eliminated the free speech problems. But Congress chose not to do so.
An earlier version that the House approved in September had radically different wording. It was reasonable by comparison, and only criminalized using an "interactive computer service" to cause someone "substantial emotional harm." That was changed in the final version.
See more CNET content tagged:
law,
First Amendment,
Communications Decency Act,
communication,
VoIP
Now, the only question is, will you be charged once for posting one thing, or will you be charged multiple times, once for each person you have annoyed?
I hope you fry for your flagrant flouting of the laws of our great land. Oh yeah - which country do you live in? No matter, even though you may live outside the United States, many of your innocent victims live inside it. I'm sure there's some anti-terrorism law (or presidential whim) that would allow us to come get you and throw you in a secret prison somewhere.
for making claims about WIndows on it's
website and in the media that annoy me!!! We
get rid of the 'dozers and therefore 90-100% of
the lusers out there. Would make life much
easier not having to deal with those idiots.
Do you think I should just continue to blog or should I just disclose all my information? I like my privacy and my right to free speech.
What if someone's email account is hacked and then spam is sent? Is the person at fault?
But as someone else pointed out, this is probably another weapon against some types of spam.
communicate something that annoys you, whether I intended to
annoy you or not. I might write something in my blog (if I did
that sort of thing) that is specifically meant to annoy people with
certain political or social leanings. For example, I could choose
to state my belief that God wanted those miners in WVA to die,
since he didn't listen to all the prayers. I would be making a
point that the "faithful" can't expect divine intervention to only
work in their favor. This sort of statement would definitely know
a lot of fundamentalists, and that is my intent. Because it's on
"the Internet" it's now illegal.
However, it's not unconstitutional. This is why I am perfectly
comfortable speaking my mind online or otherwise. It's also why
I send monthly donations to the local ACLU chapter and the EFF,
among others.
Guess what, folks? Harassment and threats are already illegal. This new law adds very, very little to the responsibilities that you already had. (See my other comment for a more technical explanation.)
But if you believe the Internet is a fantasyland where anything goes, then I suppose you can also pretend that this law is President Bush's way of personally oppressing you.
I think CNET has misunderstood the law and is spreading needless panic.
On a positive note, the statute appears, on its face (remember that IANAL), to be a clear violation of the First Ammendment.
Wrong! A Supreme court ruling specifically protects anonymous free speech. Existing laws regarding libel and slander still apply. It is the burden of the person aubjected to the libel/slander to acertain the indentity the perpetrator, and THAT is as it should be.
You want to talk about "Enough already...?" How about enough already with the insane attitude of "if you're not doing anything wrong, you have nothing to worry about." This attitude invites abuse of authority. It is already happening. We are losing our personal freedoms.
I agree with a previous post that said the sole purpose of this law is to stifle political speech. God forbid you dis Emperor Dubya.
It appears that it is getting less and less every day.
Let us say that I had read your post on a bulletin board where handles are used routinely instead of names...and I chose to respond to it by saying:
(Example)
"Listen here you pompous ass, it is clear to me that you come from the same school of thought that openly welcomes the invasion of our homes by law enforcement officials under the "If you have nothing to hide, why can't they come in whenever they please?" arguement. This makes it obvious to me that you don't give a rat's a@@ about anyone's liberties but your own, and you are blind as a bat if you can't see the erosion of constitutional liberties happening right before your eyes. Take your facist trash elsewhere!"
(END example)
NOW, under this law, and assuming the fictitious "you" is mightily annoyed by my characterization of said fictitious "you"'s of a narrow minded neocon with no regard to the essential liberties that encourage free thought, and that I posted the above example under a screen name/handle, I am now guilty of breaking the law...
Yeah...when hell freezes over. Thank the framers for the first ammendment.
The issue is with the language of the amendment, not the original text. What we need is a clearer definition of what a 'received communication' is when pertaining to the internet. If you were to say it's only e-mail, then this whole issue is moot.
The "arresting" of US currency is done because the money is suspect of being illgotten gains. But by arresting the money there is no bail or constitutional issues because the monies are non-intities.
In an act...could a broader sense of this law be taken to the same terms....in as much as "xxxbloggerxx' is not an individual as he has no birth record...no social security number...no drivers license..etc.etc. In this scenario then this "name" annoyed a law enforcement agent and violated the law and thus could be arrested and have search warrants issued and property confiscated all under this pretense of not being a legal entity.
Would it not then be the responsibility of the real person to now have to step forward and admit to what ever and all to get his/her personal property back....in the mean time the government would have access to all that was on that computer as it was confiscated...
This seems to me to be some more instances of the Homeland Security act than an annoyance law.
Why else would they not correct the wording to not be in such a conflict with Constitutional Issues.
they are knocking at my door as I write this...I hope it gets posted long enough to be read...
LMAO
lurkswithin
The basis that we should trust prosecutors "because they wouldn't do that" is one of the most inane arguments a politician could give.
Clearly there is a political motivation behind this law, possibly a concealed attempt to restrict free speech, and there have been too many instances in the recent past where promises "that we would never do that" have been massively broken.
The bottom line is that "freedom of speech" means the government is not allowed to control what we say, as long as we don't incite illegal behaviour such as violence or do the "shout fire in a theater" thing.
This law is clearly in violation of that, and a determined defendant ought to be able to use the freedom of speech argument as a successful defense.
I'm not concerned what people may think of me by revealing my identity as much as I am of identity theft, and my personal information being abused.
It doesn't matter that the law is unconstitutional, after all, the First Ammendment seems to have been... ammended. It probably now reads: "You can exercise freedom of speech as long as you don't violate any of the laws below..."
Exactly what is anonymous? Nobody is really anomymous on the Internet. Even if you don't use your real name, you can still be tracked by your IP address and your identity can be found by means of you ISP. Basically this means that everyone can say whatever they want on the Internet, and, because they are not really anonymous, they can't be sued. Does the law explain what "anonymous" means?
By the way, I find Yahoo's ads quite annoying. Sometimes they even cover my "Inbox" Link. I think I'm going to sue them too. That'll be a good waste of taxpayer dollars and court resources. After all, courts no longer seem to have real cases, with real criminals, to deal with.
- It LOOKS like the analysis is wrong!
-
by Nursevic
January 13, 2006 7:21 PM PST
- Okay, I am not a lawyer, I don't play one on TV, and I get a headache whenever I try to read stuff like this. But...
-
Reply to this comment
-
See all 79 Comments >>You state in the answer to the first question:
"""Before the new law took effect last Thursday, 47 U.S.C. 223 explicitly said it "does not include an interactive computer service." The changes override that for the "to annoy" section and now say it applies to the "Internet.""""
After reading the law and the changes, it seems to my "non-lawyer" mind, that this NOT what it says.
The new legislation says in Sec. 113:
----------------------------
SEC. 113. PREVENTING CYBERSTALKING.
(a) In General- Paragraph (1) of section 223(h) of the Communications Act of 1934 (47 U.S.C. 223(h)(1)) is amended--
(1) in subparagraph (A), by striking `and' at the end;
(2) in subparagraph (B), by striking the period at the end and inserting `; and'; and
(3) by adding at the end the following new subparagraph:
`(C) in the case of subparagraph (C) of subsection (a)(1), includes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet (as such term is defined in section 1104 of the Internet Tax Freedom Act (47 U.S.C. 151 note)).'.
(b) Rule of Construction- This section and the amendment made by this section may not be construed to affect the meaning given the term `telecommunications device' in section 223(h)(1) of the Communications Act of 1934, as in effect before the date of the enactment of this section.
=============================
Now, Paragraph (1) of section 223(h) of the Communications Act of 1934 (47 U.S.C. 223(h)(1)) as it read BEFORE it was changed by this new legislation, said:
----------------------------
(h) Definitions
For purposes of this section?
(1) The use of the term ?telecommunications device? in this section?
(A) shall not impose new obligations on broadcasting station licensees and cable operators covered by obscenity and indecency provisions elsewhere in this chapter; and
(B) does not include an interactive computer service.
=============================
After the new legislation's changes are applied, the section reads:
----------------------------
(h) Definitions
For purposes of this section?
(1) The use of the term ?telecommunications device? in this section?
(A) shall not impose new obligations on broadcasting station licensees and cable operators covered by obscenity and indecency provisions elsewhere in this chapter;
(B) does not include an interactive computer service; **_and_**
(C) in the case of subparagraph (C) of subsection (a)(1), includes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet (as such term is defined in section 1104 of the Internet Tax Freedom Act (47 U.S.C. 151 note)).
[[http://Bracketing the word 'and' with **_ _** was done by me for emphasis.]|http://Bracketing the word 'and' with **_ _** was done by me for emphasis.]]
=============================
The "does not include an interactive computer service" does NOT appear to be overridden by the changes, but specifically INCLUDED through the use of the word **_and_**. If the legislation had used the word **_or_** or **_except_**, then saying that the "does not include an interactive computer service" is excluded might make sense.
Additionally, in the new legislation, note that it says:
----------------------------
(b) Rule of Construction- This section and the amendment made by this section may not be construed to affect the meaning given the term `telecommunications device' in section 223(h)(1) of the Communications Act of 1934, as in effect before the date of the enactment of this section.
=============================
That also seems to reinforce the inclusion of "does not include an interactive computer service". If this is true, the law can now be read as:
"""Whoever...utilizes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet, and is not an interactive computer service... without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person...who receives the communications...shall be fined under title 18 or imprisoned not more than two years, or both."""
I don't know. Maybe in the legal world, the word **_and_** really means **_or_** or **_except_**.
So, can you (or someone) explain WHY the word **_and_** in the context of this legislation doesn't really mean AND, but really means **_or_** or **_except_**?
If that cannot be adequately explained, then the entire analysis is flawed, because it is based upon a flawed premise.
Nursevic
(P.S. If anyone would like to see the original law with the new changes applied and color-coded to see what was changed, here is a page that shows it:
http://people.delphiforums.com/Nursevic/eannoy/eannoy2.html )