Annoy someone online and go to jail
« on: 2006-01-10 23:54:34 »
http://blogs.knoxnews.com/knx/silence/archives/2006/01/the_first_amend_1.shtml > huh?
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.
The 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."
from elsewhere. sorry, author not credited.
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)© 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)©, 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)© 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.
Section 113 of the Violence Against Women Act adds a parameter to the telephone harassment law's definition of "telecommunications device": include any device or software that can be used to originate telecommunications or other types of communications.
The definition already excludes "an interactive computer service", defined as any information service, system, or access software provider, which should eliminate Internet postings from consideration, unless I'm missing something.
Here's the important part of the new definition: includes any device or software that can be used to originate telecommunications .
If that doesn't ring a bell, you probably aren't familiar with the battle to define VOIP (voice over internet protocol). The previous law assumed that all phone calls would be made via a "telecommunications service" using a "telecommunications device". The FCC has consistently found that VOIP is an unregulated "information service", thus exempting it from all sorts of fees and services. A VOIP call may be functionally indistinguishable from a landline or cell phone call. Legally, though, it's not a telecommunications service and doesn't require the use of a telecommunications device. Adding the new text to the definition removes a potential loophole and ensures that VOIP calls will be treated just as any other telephone call.
Orin Kerr and others have come up with various legal reasons not to worry, and I take their word for it. But I'm reasonably positive that the real purpose of this change is to ensure that VOIP services can't be used to avoid the law's intent. This summary from Senator Domenici's office supports that interpretation:
To strengthen stalking prosecution tools, this section expands the definition of a telecommunications device to include any device or software that uses the Internet and possible Internet technologies such as voice over internet services.