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.