The Ham Hock of Liberty

Tuesday, January 10, 2006

UPDATE: Cyberstalking doesn't cover message boards

In yesterday's post about the cyberstalking law that purports to outlaw "annoying" anonymous communications over the net, I mentioned that I had come across various discussions of the existing phone-stalking law which claimed that it did not apply to message boards or forum posts. After a cursory reading of the statute, I wasn't sure where this had come from.

Well, with the help of a comment to the post, I've taken a closer look at the related and applicable statutes, and it seems that message boards and forums (fora, if you're a stickler about that sort of thing) are indeed NOT covered by the cyberstalking law. This blog post summarizes the issue neatly.

The law that was signed by Bush last week contains this language in Section 113:
b) Rule of Construction- This section and the amendment made by this section may not be construed to affect the meaning given the term `telecommunications device' in section 223(h)(1) of the Communications Act of 1934, as in effect before the date of the enactment of this section.

Section 223(h)(1) of the Communications Act is now on the books at 47 USC 223, and subsection (h)(1) says the following:
(h) Definitions
For purposes of this section—
(1) The use of the term “telecommunications device” in this section—
(A) shall not impose new obligations on broadcasting station licensees and cable operators covered by obscenity and indecency provisions elsewhere in this chapter; and
(B) does not include an interactive computer service.

So "interactive computer services" are not considered telecommunications devices under this law, and use of "interactive computer services" to send "annoying" or harassing communications isn't a crime. I had in fact seen this when looking at the law yesterday, but, since you get the legal analysis you pay for, I had assumed this was the standard "doesn't apply to ISPs" provision that is added almost as a matter of course to internet laws. I was wrong.

"Interactive computer services" is defined at 47 USC 230(f)(2):
(2) Interactive computer service
The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

Now this is a little difficult to parse, but I think any reasonable reading of it includes message boards, fora, and blog posts. Blogger, for example, seems to fall squarely in the category of a "system or access software provider that provides or enables computer access by multiple users to a computer server." As unwieldy as the language is, this was Congress' attempt to limit the harassment/annoyance/threats prohibition to what are basically communications between the maker and the target. There may very well be exceptions, where publically-posted communications can fall under the cyberstalking law, but this section does in fact exclude most message board and forum posts, as well as blog updates.

So, breathe easier. The General isn't going to be shut down....


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