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« Sylvia Browne Outs Herself The RantsWill the Real Slim Christians Please Stand Up? (Please stand up, please stand up...) »

Okay, We'll Stop Our Vicious Cyberstalking (And Why This Law Isn't Harmless)
2006.01.10 (Tue) 21:32

Over on Stupid Evil Bastard, guest poster Eric Paulsen put up a post directing us toward this CNET News story:

Annoying someone via the Internet is now a federal crime.

It's no joke. Last Thursday, President Bush signed into law a prohibition on posting annoying Web messages or sending annoying e-mail messages without disclosing your true identity.

There goes the lucrative spam industry, huh?

Seriously, though, we know that there have been some comments across the blogosphere that seem to indicate that this legislation is not a big deal for various reasons. We disagree, and we'll get to that in a bit. We also don't think that this will spell the end of anonymous blogging, but we do think that the legislation is exceedingly vague and that it opens the door for abuses which could target, among others, anonymous bloggers; and that, as a result, web anonymity could be threatened. So no, it isn't the end of the world for bloggers everywhere, but we also don't agree that it's nothing but a tempest in a teacup. As usual, the truth lies somewhere in between.

The World Wide Web has single-handedly expanded the horizons of the First Amendment more than perhaps any other cultural development since the Constitution was written. Without the safety of anonymity, and the protective shield it can provide, many folks (including us) would think twice about expressing controversial opinions that might incite vicious verbal or even physical attacks.

What exactly does the new legislation entail? A look at the Library of Congress' Thomas site reveals little more than omissions and amendments applied to the Communications Act of 1934, which was since modified by the Telecommunications Act of 1996. Digging into the Internet (anonymously! How dare we!), we tracked down the wording of the 1934 legislation. Incorporating the new legislation into the the old, we arrive at some interesting language, which reads in part:

Whoever...

...in interstate or foreign communications...

...makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications...

...shall be subject to a civil fine of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation....

...[this legislation] 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)).

Come on..."annoy"? Annoy? As so many sensible folks have been pointing out, that's quite possibly the vaguest choice of language the legislators could have selected. It can literally be applied to any word or action, if you take the Ben Kenobi approach and look at it from "a certain point of view." We find stupidity and ignorance "annoying" — does that mean we can press charges against a handful of folks who have "annoyed" us with their bullshit beliefs and uneducated diatribes?

As with far too much legislation, the wording relies heavily on who decides what is "annoying" or not. And if your words or actions aren't in lockstep with the current administration, we'd be willing to bet they'd find you "annoying." This is just silly, and it violates the spirit of the First Amendment — which, while protecting our right to say what we feel, does not protect our "right" to "not be annoyed."

It is important to note, as many others have, that the word "annoy" was not one of the new additions to this section. In fact, it has existed for quite some time with regard to telephone calls. And when this legal mumbo-jumbo was applied pretty much just to telephony, you could make an argument that the "harassment" and "annoyance" was a pretty clear-cut situation — if you're calling someone who doesn't want to speak to you, and you continually call them to the point that they are intimidated by the phone ringing, then hey, yeah, that's a pretty simple case of "annoyance" crossing the line into "harassment," and that should be punished (if possible).

However, applying it to the Internet in its entirety opens up a whole new can of worms. There are two vital distinctions between the use of the telephone to disseminate information and the use of the Internet to disseminate information. The telephone is a direct and (loosely) involuntary medium of information: information is passed directly from the purveyor to the receiver, and the phone will ring whether the receiver wants it to or not. (Yes, you can choose to not answer your phone, but then you're literally trapped in your own home, unable to use a device and service that you pay for, so the harassment continues regardless.) The Internet, on the other hand, is an indirect and voluntary medium of information: the information is not provided directly to the receiver — it is simply put out there in the virtual world for anyone to see. And receivers choose what websites they visit, and what pages they read — if they don't want to read certain language or process certain ideas, they are absolutely free to go elsewhere. It's a big Internet, and there's room for everybody.

These vital differences make it next to meaningless to speak of a website's proprietors (like us) or contributors (like our readers) "harassing" or "legally annoying" (whatever that is) any individual; it's a pointless and unfounded assertion. It's nice to see that legislators are finally catching up with technology (something we constantly push for), but it's also disappointing and frightening that they don't understand the new technology they're attempting to regulate. Prosecuting someone for words they've written on a website is akin to prosecuting someone for leaving a piece of paper on their own desk, which just happens to be read by an easily offended plaintiff. It demonstrates a complete lack of understanding as to how the Internet works.

As we noted above, there have been some comments around the blogosphere lately that seem to indicate that this legislation isn't anything to worry about. So far, we have disagreed with all of those comments, for various reasons. Some of the arguments that we've heard, in several different forms, suggest that this language will not apply to various portions of the Internet, or that it isn't any different from what's been on the books for years. Kip Esquire, who we quite like, has posted several of these arguments in one place, and we respectfully disagree with them. Kip says:

--The word "annoy" appeared in the original VAWA; that is not the new language. Rather, the amendment extends the "annoy" element to the Internet as well as to the telephone. I do of course consider "annoy" to be an unconstitutionally vague term, but let's acknowledge that its presence in the statute is not new. What is an "annoying" blog? Who knows? But then again, what is an "annoying" telephone call?

We're in agreement with Kip's statement, but not with the implication that these facts render the changes harmless. Yes, the use of the word "annoy" is problematically vague, and yes it has been on the books with regard to phone calls for quite some time. However, as we said above, we feel that there is a big difference between receiving an annoying anonymous phone call and electing to read an anonymous blog comment that annoys you. Either way, we don't like the word "annoy," but the magnitude of the problem increases dramatically when the arena expands from telephony to the entire internet.

Kip goes on to say:

--The law applies, at most, to emails and not, contrary to all the panic, to web message boards and especially not to blogs. The statute requires a "transmission" — a website is not a "transmission" and is clearly not covered by the amendment. This is, at most, about anonymous e-mails that are intentionally sent (i.e., "transmitted") to specific email addresses. I "send" (i.e., transmit) emails but I don't "send" (i.e., transmit) my blog anywhere — readers seek it out.

Here we disagree. While Kip's interpretation makes it seem as if a person must transmit the annoying message in order to trip over this law, the language itself simply doesn't lead us there. Instead, the language says that it includes communications "that are transmitted, in whole or in part, by the Internet." So violation of this law isn't triggered only by the act of a person transmitting a message, as would happen when an e-mail is sent, but rather whenever any message is transmitted via the Internet. When we visit a website, we access a server via the hypertext transfer protocol and the requested data is transmitted via the Internet to our computers. So perhaps the scope of the changes wasn't intended to apply to websites, but as we said, it's far too vague to lead us to such a precise delineation.

Kip continues:

--Indeed, if you follow the statutory trail carefully — i.e., jump from the new section (h)(1)(C) to its reference of the original section (a)(1)(C) — it becomes apparent that the amendment isn't even about emails, but about Internet-based phone calls (e.g., Vonage). The extension to "the Internet" is referring to one who "makes a telephone call or utilizes a telecommunications device." A computer can be a "telecommunications device," but a blog cannot.

Again, we disagree. While it is clear that the original language was meant to apply only to telephony, we do not agree that the change extends coverage only to Internet telephony. In point of fact, it seems that this change was meant specifically to ensure that applicability was not limited to telephony. VOIP might be a brave new world, but it's still essentially a telephone, and would seem quite capably covered by the original language. The intent of the new additions may have been only to cover Internet telephony, but the language is too vague to make such a definitive statement.

In addition, we disagree with the assertion that this language excludes blogs on the grounds that a blog is "not a telecommunications device." The statute quite clearly says that it "includes any device or software that can be used to originate telecommunications or other types of communications." So, in our case, we are using blog software on our computer to originate the communications posted on our website. In no way do we see how blogs (or any other websites) are excluded by this language.

Kip continues:

--Also lost in the hysteria is the fact that the "transmission" must be "obscene, lewd, lascivious, filthy, or indecent." Again, I'm not endorsing the law or the amendment generally, or these terms specifically. But it deserves repeating that it is not now a crime merely to have an anonymous blog or to post an anonymous message on Usenet that somebody, somewhere, finds "annoying."

Sorry, but no. Section 223 lists a number of things that are illegal, and the list items are separated by the word or — a key point, semantically. So while the language in (a)(1)(A) and (a)(1)(B) both require obscene or indecent content to be part of the offending message, (a)(1)(C) only requires "intent to annoy, abuse, threaten, or harass" in order to be deemed illegal. Obscenity and indecency are in no way required in order to render a message in violation of this statute. Kip's reading of this aspect of Section 223 seems to be plainly incorrect. Again, we're not trying to pick on Kip, and we are fans of his site — we just don't agree with his interpretations here. Frankly, if nothing else, this demonstrates just how vague and open to abuse this new statute is.

Another argument that we've seen roaming around the blogosphere apparently originates in the comments of a BoingBoing post:

A government lawyer intimately familiar with the subject who requests anonymity (but whose identity is legit, and known to Boing Boing) sez,
Your latest reader comment has it exactly right. The anonymous harassment provision ( Link ) is the old telephone-annoyance statute that has been on the books for decades. It was updated in the widely (and in many respects deservedly) ridiculed Communications Decency Act to include new technologies, and the cases make clear its applicability to Internet communications. See, e.g., ACLU v. Reno, 929 F. Supp. 824, 829 n.5 (E.D. Pa. 1996) (text here), aff'd, 521 U.S. 824 (1997). Unlike the indecency provisions of the CDA, this scope update was not invalidated in the courts and remains fully effective.

In other words, the latest amendment, which supposedly adds Internet communications devices to the scope of the law, is meaningless surplusage.

According to this argument, the CDA updated Section 223 (which is accurate as the CDA basically wrote the current version of Section 223), and ACLU v. Reno only overturned the paragraphs concerned with indecency (again, correct). As a result, the argument goes, it is clear that Section 223(a)(1)(C) already covers Internet communications, therefore rendering the new language merely superfluous.

We disagree. According to the ACLU v. Reno decision linked above, one of the primary reasons for siding with the plaintiff was the fact that the legislation written for telephony simply should not (and in some cases could not) be applied to the Internet. From that decision:

Cutting through the acronyms and argot that littered the hearing testimony, the Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion.

So, the decision established that these specific paragraphs of Section 223 could not be applied to the Internet, but didn't specifically call out 223(a)(1)(C) or its references to "annoying" messages. However, it could be said that ACLU v. Reno set a precedent that could be used to support a challenge to the language in 223(a)(1)(C).

To us, then, the inclusion of language that overtly seeks to include Internet communications under the violations outlined in 223(a)(1)(C) seems to be a direct attempt (no matter how useless) to counter the ACLU v. Reno precedent before a challenge arises. We don't see the language as superfluous at all, but rather as an attempt to circumvent the ACLU v. Reno ruling, a ruling that could also potentially be applied to "annoying" messages. Once again, what was the intent of this change? We don't know, but it's vague enough in our opinion to warrant concern.

One final argument that we'll call out was made by Orin at the Volokh Conspiracy. In short, he claimed the following:

It turns out that the statute can only be used when prohibiting the speech would not violate the First Amendment. If speech is protected by the First Amendment, the statute is unconstitutional as applied and the indictment must be dismissed.

Sounds simple, right? But to say that the problematic vagueness of this statute will be easily held in check by the well-known vagueness concerning what "annoying" communications are, or are not, protected speech — sorry, that just doesn't work for us. Eugene Volokh has a much better defense of this position than we could construct, so we'll point you there for more details (as well as other good arguments, and an aside on the pitfalls of trying to apply legislation meant for one-to-one communications to the very different circumstances of one-to-many communications).

Look, we're not trying to overreact, and we're not screaming about the end of the world — we're simply saying that the explicit inclusion of Internet communications (which, based on the language we see, encompasses websites, e-mail, and everything else) in a provision that used to just criminalize annoying phone calls is more problematic than some people seem to think it is. Sure, Congress may not have intended to expand the scope beyond Internet telephony (though the title reference to "cyberstalking" certainly gives us pause), and sure, they may never enforce this law on websites (though they wasted little time breaking their promise with regards to the Raich decision on medicical marijuana), but in that case: clean up the damn wording and say what you mean.

And wouldn't you know it, amidst all this silly legislation and the maddening misconception of how the basic technology works, there was bound to be something which pissed us off at least as much as the wording of the law itself.

This ridiculous prohibition, which would likely imperil much of Usenet, is buried in the so-called Violence Against Women and Department of Justice Reauthorization Act. Criminal penalties include stiff fines and two years in prison.

That's right — this load of bullshit was carefully shielded inside a bill ostensibly dedicated to DOJ funding and dealing with the actually important issue of violence against women; artfully tucked in there, out of the way, so any opponents would look mean and e-ville voting against a bill to give money to the Department of Justice and take care of women's safety. Once again, this fucking asinine practice of allowing irrelevant riders on congressional bills rears its ugly head. This shit is a symptom of the worst corruption in our system of government, and frankly, we're sick of it. Bills shouldn't be able to have riders which are irrelevant to the primary purpose of the bill. Every bill should be considered only on the merits of its primary purpose and directly related secondary considerations (for instance, the strategy for funding a particular project would be directly related to the bill proposing that project).

The fact that this sort of crap is offered as "sensible" legislative practice drives us crazy. Yes, yes, we know — that's just how it is, Two Percenters, don't get your panties in a bunch! Listen: everything was "just how it is" once, and it was changed by people who challenged the bullshit. We're just trying to pitch in, doing our part to point out the latest crop of crap. Yell loud enough, long enough, and maybe someone will listen.


— • —
[  Filed under: % Civil Liberties  % Computers & the Internet  % Government & Politics  ]

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