The Ham Hock of Liberty

Monday, January 09, 2006

On Being Annoying

Earlier this morning, Atrios posted an entry about a new federal law that purports to make annoying, anonymous internet messages a federal crime. His blurb was based on this C|Net article. While the author of the C|Net piece was technically correct, there is not quite so much "there" there. Here's why.

The Violence Against Women and Department of Justice Reauthorization Act did not come out of the blue to outlaw "annoying" internet messages. What it did was amend an existing law, 47 USC s.223, which already prohibited this conduct when used over the phone:
[Any naughty boy or girl who] 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 new law basically added "this includes the net" to that clause.

Now the reason why this is not a particularly outrageous law is that the existing law has been upheld. Although the term "annoy" is broad and vague, courts have interpreted it narrowly, in the context of the phrase "annoy, abuse, threaten, or harass," to mean not just being a jerk over the phone, but actual stalking or harassment-type situations. To an extent, the judiciary has been cleaning up after the legislature, and interpreted this law narrowly enough so that it would be constitutional.

Because the new law only said, in essence, "This goes for the net too," there is no reason to think that courts faced with this law will interpret it to prohibit any conduct that is legal to do over the phone. In short, there is little chance that the new law will be used to prosecute successfully anyone who isn't engaged in actual threats, harassment or stalking. Any attempt to convict someone based on an internet flamewar or obnoxious email will fail; first, because the statute does not cover those communications, and second, it would be unconstitutional if it did.

Furthermore, a number of legal authorities have concluded that 47 USC s.223 applies only to communications between the communicator and target, and does not apply to message posting in an open forum. Having read the statute, I'm not quite sure where this conclusion is coming from, but the language referring to "the called number" and "the person who receives the communications" do arguably show an intent to limit this law to what are more or less private, directed messages.

I think if this law is challenged, it will actually be upheld; what has been OK'ed for phone calls will be OK'ed for the net, because the law has been interpreted very narrowly, and does not actually prohibit anonymous "annoyances." Courts recognized the law was designed to prevent stalking, and have consistently intepreted it that way.

8 Comments:

  • Nim,

    Thanks for the clarification. I would still rather that that the law be narrow and explicit as to what "annoy" means, since this seems to be an opening for idiots to try to discourage judges from doing their jobs by calling them "activist"....

    By Blogger Tlazolteotl, at 7:06 PM  

  • "Thanks for the clarification. I would still rather that that the law be narrow and explicit as to what "annoy" means, since this seems to be an opening for idiots to try to discourage judges from doing their jobs by calling them "activist"...."

    Ideally, that would have been a better way to draft the original stalking law. But in light of the case law precedent that's been built up, I think it's safe to assume that any horror stories from "annoyance" prosecutions will be few and far between.

    The fact that there is apparently no private right to sue in this law for a violation of this statute is the saving grace. Otherwise you would have every hothead on the net suing everyone that flamed him/her.

    By Blogger Nim, at 7:14 PM  

  • As near as I can tell this posting, which I am doing to annoy you, is covered by the law.

    [Blows raspberry]

    Do you want me to be a test case that I should get two years?

    By Anonymous Anonymous, at 7:14 PM  

  • "As near as I can tell this posting, which I am doing to annoy you, is covered by the law."

    If you take a literal, common-sense interpretation of "annoy," then yes it would be covered. But there's no way you'd ever be prosecuted, because that's simply not how courts have interpreted the phone-harassment law. They've read "annoy, harass, threaten, etc." together, as prohibiting actual stalking-type behavior, and not just blowing raspberries.

    This law is not without its problems...but I don't think we're going to be seeing anyone going upriver unless it's seriously menacing behavior, and not just a flamewar.

    By Blogger Nim, at 7:17 PM  

  • Possibly of interest: http://www.nyu.edu/classes/siva/archives/002638.html

    By Anonymous Anonymous, at 12:00 AM  

  • I am perfectly willing to be a test case and have started a blog with the intent of annoying everyone I possible can. Take a look at http://anonannoyances.blogspot.com and let me know what you think. Also, I am open to suggestions on who and how to annoy next. Thanks!

    By Anonymous Anonymous, at 10:25 PM  

  • Have a question what about the phone harassment of a bill collector of the an inter-net service on someone else's billing you tell them that is not mine they give you two months free service for your own account yet you keep getting harassed daily sometimes up to four times a day?

    By Anonymous Anonymous, at 4:39 PM  

  • By Blogger vuong, at 10:47 PM  

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