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January 10, 2006

No Kidding. It's Now a Crime To Annoy Someone Via the Internet - Anonymously

Declan McCullagh writes on political news for CNET.  He's noted a change in federal law signed by President Bush on January 5th that criminalizes anonymous Internet communications sent with the intent to annoy.  The law in question is the Violence Against Women and Department of Justice Reauthorization Act of 2005 (H.R. 3402) which amends 47 U.S.C. 233 to include anonymous Internet Communication.

The law as currently written states in part:

Whoever—
(1) in interstate or foreign communications—

***

(C) 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;

The amendment (section 113 of the act) adds the following language to the statute:

[I]n 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)).

The penalty for violating the act is a fine and up to 2 years in prison.

McCullagh gathers the reaction of various civil liberty groups who are understandably miffed by the change in law.  The question turns on the term "annoy," which is not defined.  Certainly with phone calls intent to annoy can be ferreted out at least by the circumstances if not other evidence.  The Internet, with its freewheeling style even in these days of commercialism and control has plenty of room for all manner of anonymous communication that can annoy.  Blogs written under pseudonyms can certainly annoy politicians.  Various forums offer plenty of opportunity for snide mischief under an assumed name.  There are other situations.

Determining intent can be fraught with problems.  Sometimes, as in whistle blower situations, anonymous Internet communication is a good thing, although those exposed will likely be annoyed.  There are cases of journalists or other individuals who use the Internet to spread news that is being suppressed by foreign governments.  Does this law now mean that in addition to ISP's providing the names of (annoying) individuals to the Chinese government, Beijing can also have the Department of Justice prosecute them as well?  This may sound extreme, but the law is so open-ended that absurd results may not seem so absurd.  Another possibility is when someone writes something and it gets republished without an attribution.  Is there liability?

McCullagh sites a case in his discussion where the Supreme Court struck down a ban on distribution of anonymous political pamphlets.  The case is McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).  That case concerned political speech, although a general scan of the Court's precedents before and after that case indicate that prohibition against anonymous communication generally runs afoul of the First Amendment.  The McIntrye case was decided 7-2, with the late Chief Justice Rehnquist and Justice Scalia on the short end of that judgment.

It's a real question if this provision will remain a stupid but dormant law, or will there actually be prosecutions.  Until this is resolved, if you intend to annoy someone on the Internet, make sure you place your name somewhere for accountability.  If you identify yourself, you won't go to jail.

Read the story at CNET here.

January 10, 2006 | Permalink

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