TELECOM Digest OnLine - Sorted: Create an e-Annoyance, go to Jail

Create an e-Annoyance, go to Jail

Marcus Didius Falco (
Thu, 12 Jan 2006 03:44:59 -0500,+go+to+jail/2010-1028_3-6022491.html

Create an e-annoyance, go to jail

By Declan McCullagh

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

In other words, it's OK to flame someone on a mailing list or in a
blog as long as you do it under your real name. Thank Congress for
small favors, I guess.

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.

"The use of the word 'annoy' is particularly problematic," says Marv
Johnson, legislative counsel for the American Civil Liberties
Union. "What's annoying to one person may not be annoying to someone

It's illegal to annoy

A new federal law states that when you annoy someone on the Internet,
you must disclose your identity. Here's the relevant language.

"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."

Buried deep in the new law is Sec. 113, an innocuously titled bit called
"Preventing Cyberstalking." It rewrites
existing telephone harassment law to prohibit anyone from using the Internet
"without disclosing his identity and with intent to annoy."

To grease the rails for this idea, Sen. Arlen Specter, a Pennsylvania
Republican, and the section's other sponsors slipped it into an
unrelated, must-pass bill to fund the Department of Justice. The plan:
to make it politically infeasible for politicians to oppose the

The tactic worked. The bill cleared the House of Representatives by
voice vote, and the Senate unanimously approved it Dec. 16.

There's an interesting side note. An earlier law approved in September
had radically different wording. It was reasonable by comparison, and
criminalized only using an "interactive computer service" to cause
someone "substantial emotional harm."

That kind of prohibition might make sense. But why should merely
annoying someone be illegal?

There are perfectly legitimate reasons to set up a Web site or write
something incendiary without telling everyone exactly who you are. A
law meant to annoy?

FAQ: The new 'annoy' law explained:

A practical guide to the new federal law that aims to outlaw certain types
of annoying Web sites and e-mail.
<a href="/FAQ+The+new+annoy+law+explained/2100-1028_3-6025396.html?tag=3Dnl">

Think about it: A woman fired by a manager who demanded sexual favors
wants to blog about it without divulging her full name. An aspiring
pundit hopes to set up the next

A frustrated citizen wants to send e-mail describing corruption in
local government without worrying about reprisals.

In each of those cases, someone's probably going to be annoyed.
That's enough to make the action a crime. (The Justice Department
won't file charges in every case, of course, but trusting
prosecutorial discretion is hardly reassuring.)

Clinton Fein, a San Francisco resident who runs the
=3D1023&lop=3Dnl.ex> site, says a feature permitting visitors to send
.html&ontId=3D1023&lop=3Dnl.ex>obnoxious=20 and profane postcards
through e-mail could be imperiled.

"Who decides what's annoying? That's the ultimate question," Fein
said. He added: "If you send an annoying message via the United States
Post Office, do you have to reveal your identity?"

Fein once sued to overturn part of the Communications Decency Act that
outlawed transmitting indecent material "with intent to annoy." But
the courts ruled the law applied only to obscene material, so didn't have to worry.

"I'm certainly not going to close the site down," Fein said on
Friday. "I would fight it on First Amendment grounds."

He's right. Our esteemed politicians can't seem to grasp this simple
point, but the First Amendment protects our right to write something
that annoys someone else.

It even shields our right to do it anonymously. U.S. Supreme Court Justice
Clarence Thomas

defended this principle magnificently in a 1995 case involving an
Ohio woman who was punished for distributing anonymous political

If President Bush truly believed in the principle of limited
government (it is in his official bio), he'd realize that the law he
signed cannot be squared with the Constitution= he swore to uphold.

And then he'd repeat what President Clinton did a decade ago when he
felt compelled to sign a massive telecommunications law. Clinton
realized that the section of the law punishing abortion-related
material on the Internet was unconstitutional, and he directed the
Justice Department not to enforce it.

Bush has the chance to show his respect for what he calls Americans'
personal freedoms. Now we'll see if the president rises to the occasion.
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