Cry wolf, get reaction (was Create an e-annoyance, go to jail)

[David Farber <dave () farber net>]

Begin forwarded message:

From: Seth Finkelstein <sethf () sethf com>
Date: January 10, 2006 11:56:50 AM EST
To: David Farber <dave () farber net>, ip () v2 listbox com
Cc: "Lin, Herb" <HLin () nas edu>, dpreed () reed com, ghicks () well com,  
jwarren () well com
Subject: Cry wolf, get reaction (was Create an e-annoyance, go to jail)

[ http://volokh.com/posts/1136873535.shtml ]

[Orin Kerr, January 10, 2006 at 1:12am]
A Skeptical Look at "Create an E-annoyance, Go to Jail":

Declan McCullagh has penned a column that is custom-designed to race
around the blogosphere. It begins:

      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."

  This is just the perfect blogosphere story, isn't it? It combines
  threats to bloggers with government incompetence and Big Brother,
  all wrapped up and tied togther with a little bow. Unsurprisingly, a
  lot of bloggers are taking the bait.

  Skeptical readers will be shocked, shocked to know that the truth is
  quite different. First, a little background. The new law amends 47
  U.S.C. 223, the telecommunications harassment statute that goes back
  to the Communications Act of 1934. For a long time, Section 223 has
  had a provision prohibiting anonymous harassing speech using a
  telephone. 47 U.S.C. 223(a)(1)(C) states that

    [whoever] 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 [punished].

  Seems pretty broad, doesn't it? Well, there's a hook. 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. An example of this is United States
  v. Popa, 187 F.3d 672 (D.C. Cir. 1999). In Popa, the defendant
  called the U.S. Attorney for D.C on the telephone several times, and
  each time would hurl insults at the U.S. Attorney without
  identifying himself. He was charged under 47 U.S.C. 223(a)(1)(C),
  and raised a First Amendment defense. Writing for a unanimous panel,
  Judge Ginsburg reversed the conviction: punishing the speech
  violated the Supreme Court's First Amendment test in United States
  v. O'Brien, 391 U.S. 367 (1968), he reasoned, such that the statute
  was unconstitutional as applied to those facts.

  Under cases like Popa, 47 U.S.C. 223(a)(1)(C) is broad on its face
  but narrow in practice. That is, the text looks really broad, but
  prosecutors know that they can't bring a prosecution unless doing so
  would comply with the Supreme Court's First Amendment cases.

  That brings us to the new law. The new law simply expands the old
  law so that it applies to the Internet as well as the telephone
  network. It does this by taking the old definition of
  "telecommunications device" from 47 U.S.C. 223(h), which used to be
  telephone-specific, and expanding it in this context to include "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."

  Now I suppose you can criticize Congress for being lazy. They
  haven't rewritten the old 1934 statute in light of the modern First
  Amendment, and that has resulted in a criminal statute that looks
  much broader than it actually is. The new law expands the
  preexisting law by amending the definition of "telecommunications
  device," which maintains the same gap between the law on the books
  and the law in practice. The formulation is a bit awkward. But the
  key point for our purposes is that the law is not the "ridiculous"
  provision Declan imagines. It looks funny if you don't know the
  relevant caselaw, but in practice it simply takes the telephone
  harassment statute we've had for decades and applies it to the
  Internet.

  UPDATE: Cal Lanier takes a look, and concludes that this is just
  about making sure the telephone harassment law applies to VOIP.
  http://www.footballfansfortruth.us/archives/001318.html

--
Seth Finkelstein  Consulting Programmer  sethf () sethf com  http:// 
sethf.com
Infothought blog - http://sethf.com/infothought/blog/
Interview: http://sethf.com/essays/major/greplaw-interview.php


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