“Congress Shall Make No Law…”

“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.”

Pretty harsh, huh? What kind of wacky country would you have to live in where somebody could go to the federal pokey for two years, just because they annoyed somebody else with an online posting?

Well, believe it or not, that’s now federal law.

Not in China, not in Iran, not in Cuba. Well, yes, some variation of those words probably is the law in all of those places–but those exact words really are the law in the United States of America. Here’s a Declan McCullagh column with the sordid details; according to McCullagh, the “annoyance” language was slipped into the “Violence Against Women and Department of Justice Reauthorization Act” at the behest of Pennsylvania Senator Arlen Specter.

Let’s parse no phrases and mince no words here: this law is an outrage. It is an offense against the First Ammendment, and everyone responsible for its vile passage ought to be ashamed of themselves. It is a blatantly unconstitutional attempt to silence the Internet and to bully down anonymous voices. While I myself have no use for anonymity (I’ve used my own name online since getting my first AOL account over a decade ago), I’m not about to countenance any attempt to prosecute people just for posting something that might “annoy” somebody else. Like, say, a United States Senator.

If I were the type of guy who drummed up blogosphere campaigns, I’d suggest that everybody with a blog adopt a fake name, and start posting stuff guranteed to annoy the authors of this obnoxious law.

Just a thought.

NOTE: The actual legalese used to get this abomination into law is not as cut-and-dried as McCullagh’s article (or my post) suggests. The Senate weasels used a pretty convoluted method to get the “annoy” reference into the law. Here’s a link explaining what happened in the legislation in greater detail.

Law-talkin’ guys, feel free to chime in here.

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23 Responses to ““Congress Shall Make No Law…””

  1. Gaius Arbo Says:

    I am NOT finding this language – I am finding “Substantial harm”, but not “annoy” – at least in the final bill as enrolled. Please provide the section this language is in?

  2. Frank Martin Says:

    maureen dowd is pretty annoying, you think we might have case?

  3. WIll Collier Says:

    It’s not as cut-and-dried as McCullagh’s article suggests, but apparently his analysis is correct. They ammended a prior law that does include the word “annoy” in the list of shall-nots. Here’s a link to a discussion:

    http://news.com.com/5208-1028-0.html?forumID=1&threadID=12943&messageID=101125&start=-116

    I’d appreciate hearing from any law-talkin’ guys on this one.

  4. Gaius Arbo Says:

    I’ve been through as many sections as I can handle at one sitting and I still cannot find the words. If they are in there, I’ll be one of the loudest people screaming things to annoy anyone who voted for this.

    If anyone can find the cited wording, please provide the citation.

  5. Will Collier Says:

    Gaius, please check the new link on the main post. The progression McCullough illustrates there makes sense to me, but IANAL. I’d appreciate hearing from people with actual expertise on this one.

  6. Gaius Arbo Says:

    If true, this is a very convoluted methodology.(I’ll try to do some research on Thomas later). It would also appear to be an attempt to put harrassing internet communications on par with harrassing phone calls. But I don’t even play a lawyer on TV, so it would be good to get some actual legal opinions here.

  7. Gaius Arbo Says:

    Ok, after wading through this agai, we definitely need a lawerly analysis. It seems to me (not a lawyer) that since this comes out of section 113 of the bill as reported, it pertains to cyberstalking only. It would seem to be outlawing on the internet that which is already illegal on a telephone. But again, we need real expert opinion to make sense of the convoluted back and forth between code sections.
    I sent an email on to a few people that should be able to a) interpret this, b) clarify it and c) see if it something to be alarmed about or not.

    Meanwhile, any actual, real live lawyerly types, please take a look at the whole mess, please.

  8. triticale Says:

    IANAL but it seems to me that this would outlaw advertising on any radio station which streams its broadcasts. At least annoying advertising, which is most of it.

  9. Below The Beltway Says:

    From The Department Of Stupid Laws

    Several bloggers today have been discussing the reauthorization of the Violence Against Women Act

  10. A Stitch in Haste Says:

    New VAWA “Annoying” Clause is Indeed Annoying — But Not to Blogs

    The libertarian wing of the Blogosphere is very much abuzz about this report regarding an extension to the Violence Against Women Act to cyberspace:The libertarian wing of the Blogosphere is very much abuzz about this report regarding an extension to the Violence Against Women Act to cyberspace:<blockquote…

  11. Gaius Arbo Says:

    Looks like this was, indeed, a misreading of the law. See the Volokh site:http://volokh.com/archives/archive_2006_01_08-2006_01_14.shtml#1136873535
    (Link via Instapundit)
    There’s a lot more on case law and precedent there, but the intent appears to be as I called it earlier.
    Now the question is why did McCullagh post it the way he did? If a misreading/misinterpretation, he should immediately correct and stop the the spinning. If intentional, he has badly hurt his credibilty as a reliable source.

  12. Will Collier Says:

    I’m not about to get into arguing statute and/or case law with the Volokh folks (other than to readily admit that they know a lot more about the law than I do), but whether they’re right or wrong about the intent and/or precedents here, the literal words of the law remain, and they’re going to give “annoyed” people at least the appearance of legal power to silence criticism. Look at the way the DCMA has been “creatively” used in legal nastygrams and suits for a rather scary example.

    McCullagh may well have overstated the legalities, but the real-world impact of that language in federal law could be a very different matter.

  13. Gaius Arbo Says:

    DO you have any examples of the creative uses? I’m not familiar with them.

    I think, at the very least, CNet and McCullagh need to immediately correct the article.

    I’m not sure that the wording of the statute is as well written as it should be, but I’m also not completely clear on how it could be improved. The lawyers can thrash that one out.

    That said, I think the idea of extending the law about telephone harrassment to cover new technology is probably a good thing overall.

    Meanwhile, I’ve spent enough time on this one, I think.

    I have a letter to work on.

  14. Will Collier Says:

    Sure, Lexmark trying to sue people under DCMA from making knock-off printer cartridges springs to mind. DCMA has also been used as an excuse for numerous take-down demands that weren’t consistent with even the written law. Here’s a link to a rundown of a bunch of them:

    http://lawweb.usc.edu/news/releases/2005/legalFlaws.html

  15. Will Collier Says:

    And, uh, it’s DMCA, not DCMA. Sorry about that.

  16. Gaius Arbo Says:

    Ok, that indicates that the statute needs to be cleaned up. The convoluted language is a problem. It also looks like some people could win suits against the people using these notices improperly….Maybe a good thing for a hungry lawyer to look into?

  17. Steven Plunk Says:

    Okay, I may be stupid and I may be ignorant of the potential harm but I really don’t see how this will chill free speech. All you have to do is sign your real name to whatever you post. After that you may annoy, harass, abuse and threaten as you see fit.

    Free speech comes with certain responsibilities. If we want to avoid those responsibilities we cheapen the right to free speech and even the content of what we say.

    I don’t agree that we should have government involvement in this area but we should address it in a different manner not as a free speech issue.

  18. ss Says:

    This statute simply mirrors harassment law already applicable to telephone harassment, which has withstood constitutional challenge. Nothing to see here. This should no more chill one’s anonymous online commenting than one is already chilled in their speech by the possibility that they could face jail for making threats and for intentionally harassing people verbally, over the telephone, or in old-fashioned death-threat letters.

    Although individual prosecutions could theoretically involve constitutionally-protected speech (thus, rendering the law unconstitutional as applied and invalidating the conviction), the law is not almost certainly not unconstitutional on its face, as there is surely a legitimate interest in preventing bona fide cyberstalking and on-line threats. As to the supposedly worrisome term “annoy,” Sixth Circuit Court of Appeals had this to say:

    “[T]he focus of the telephone harassment statute is not simply annoying telephonic communications. It also prohibits abusive, threatening or harassing communications. Thus, the thrust of the statute is to prohibit communications intended to instill fear in the victim, not to provoke a discussion about political issues of the day. See United States v. Lampley, 573 F.2d 783, 787 (3d Cir.1978) (holding that in enacting the telephone harassment statute, “Congress had a compelling interest in the protection of innocent individuals from fear, abuse or annoyance at the hands of persons who employ the telephone, not to communicate, but for other unjustifiable motives”) (citations omitted). Second, the telephone harassment statute operates in a distinctly different realm of communication than the ordinance in Coates, which governed the manner in which individuals could assemble and communicate in the open on public property. Persons who find sidewalk speech annoying usually are not being singled out by the speaker and, in any event, have the option of ignoring that speech by walking away or taking a different route. Because the sidewalk speaker is operating in the open, annoyed listeners have little reason to fear for their safety and can readily identify and confront the speaker if they so choose. Not so with individuals receiving unwelcome, anonymous telephone calls. Call recipients have to deal with much more inconvenience to avoid the speech (e.g., changing telephone numbers or using a call-screening service); these calls usually are targeted toward a particular victim and are received outside of a public forum (e.g., the home or the workplace); and, because the caller does not identify himself, the speech is more likely to instill fear in the listener and, at a minimum, makes it more difficult for the listener to confront the caller. Accordingly, the domain of prohibited speech is far more circumscribed, and the government’s interest in protecting recipients of the speech is far more compelling, under the telephone harassment statute compared to the city ordinance at issue in Coates.
    We acknowledge that the telephone harassment statute, if interpreted to its semantic limits, may have unconstitutional applications. For example, if Bowker had been charged with placing anonymous telephone calls to a public official with the intent to annoy him or her about a political issue, the telephone harassment statute might have been unconstitutional as applied to him. See United States v. Popa, 187 F.3d 672, 677-78 (D.C.Cir.1999) (holding that telephone harassment statute was unconstitutional as applied to defendant who had placed seven calls to a U.S. Attorney*380 to complain about his treatment by the police and the prosecutor’s conduct of a case against him). But Bowker was not so charged. His calls were predominately, if not exclusively, for the purpose of invading his victim’s privacy and communicating express and implied threats of bodily harm. This type of speech is not constitutionally protected. Landham, 251 F.3d at 1080. But the fact that application of the telephone harassment statute may be unconstitutional in certain instances does not warrant facial invalidation. See Parker v. Levy, 417 U.S. 733, 760, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) (facial invalidation not appropriate when the remainder of the statute “covers a whole range of easily identifiable and constitutionally proscribable conduct”); Staley, 239 F.3d at 786-87 (holding that “several examples of speech or expressive conduct that could conceivably be restricted under the statute” did not render anti-stalking statute unconstitutional). Whatever overbreadth exists in the statute “can be cured on a case-by-case basis.”

    We agree that the word “annoy,” standing alone and devoid of context and definition, may pose vagueness concerns. But that is not the case with the telephone harassment statute. The statute reads “annoy, abuse, threaten, or harass.” 47 U.S.C.

  19. ss Says:

    Let me draw emphasis to the important bits of that case quote:

    “[T]he thrust of the statute is to prohibit communications intended to instill fear in the victim, not to provoke a discussion about political issues of the day.

    Whatever overbreadth exists in the statute “can be cured on a case-by-case basis.”

    [T]he statutory language must be read in the context of Congressional intent to protect innocent individuals from fear, abuse or annoyance at the hands of persons who employ the telephone, not to communicate, but for other unjustifiable motives. This context suggests that the words annoy, abuse, threaten or harass should be read together to be given similar meanings.

    In other words, the Court assures us that the word “annoy” does not mean what you think it means. It means harassment, abuse and threats that are not protected constitutional speech.

  20. Gaius Arbo Says:

    Yeah, the Volokh site and Concurring opinions both have it covered. Volokh cited relevant case law as well and said it would never pass constitutional muster if attempted to apply broadly. Will has a point that that hasn’t stopped some jerks from misapplying existing law to force takedown of things they object to. And absent a lawyer on some ISP’s staff, they may fall for it. All the more reason to make sure people understand what this law does and does not say.
    I for one intend to go on trying to annoy as many people as I can as often as I can.
    (Not really, but it was a funny line).

  21. Will Collier Says:

    For those still following the discussion here, Eugene Volokh has a new post up dissenting with the “this isn’t a big deal” position:

    http://volokh.com/archives/archive_2006_01_08-2006_01_14.shtml#1136923654

  22. Gaius Arbo Says:

    I was just about to post the same link, Will. You beat me to it.

    Ah, the law. Just when it’s clear, another lawyer weighs in
    ….

    Obviously a badly written statute.

  23. The Anger of Compassion Says:

    Imposing Preferences, American Style

    Walter Williams: I fear that too many Americans have contempt for the principles of liberty and opt for solutions that employ the political arena to forcibly impose their wills on others. If that’s the preferred game, then those Americans shouldn’t…

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