Turns out this isn't quite as bad as everyone is blowing it up to be :shocked:
http://volokh.com/archives/archive_2006 ... 1136873535
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.
