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http://news.com.com/Create+an+e-annoyance,+go+to+jail/2010-1028_3-6022491.html
Create an e-annoyance, go to jail
By Declan McCullagh
Published: January 9, 2006, 4:00 AM PST
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.
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 else."
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 measure.
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 version that the House 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.
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 Suck.com. A frustrated citizen wants to send e-mail describing
corruption in local government without worrying about reprisals.
In each of those three 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 Annoy.com site, says a
feature permitting visitors to send obnoxious 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 Annoy.com 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 pamphlets.
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.
Biography
Declan McCullagh is CNET News.com's Washington, D.C., correspondent. He
chronicles the busy intersection between technology and politics. Before that,
he worked for several years as Washington bureau chief for Wired News. He has
also worked as a reporter for The Netly News, Time magazine and HotWired.
Create an e-annoyance, go to jail
By Declan McCullagh
Published: January 9, 2006, 4:00 AM PST
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.
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 else."
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 measure.
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 version that the House 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.
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 Suck.com. A frustrated citizen wants to send e-mail describing
corruption in local government without worrying about reprisals.
In each of those three 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 Annoy.com site, says a
feature permitting visitors to send obnoxious 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 Annoy.com 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 pamphlets.
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.
Biography
Declan McCullagh is CNET News.com's Washington, D.C., correspondent. He
chronicles the busy intersection between technology and politics. Before that,
he worked for several years as Washington bureau chief for Wired News. He has
also worked as a reporter for The Netly News, Time magazine and HotWired.