Create an e-annoyance, go to jail

By Declan McCullagh

Story last modified Mon Jan 09 04:00:00 PST 2006

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

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

"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."
It's illegal to annoy

A new federal law states that when you annoy someone on the Internet, you
must disclose your identity. Here's the relevant language.

"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."

Buried deep in the new law is Sec. 113, an innocuously titled bit called
"Preventing Cyberstalking." It rewrites existing telephone harassment law to
prohibit anyone from using the Internet "without disclosing his identity and
with intent to annoy."

To grease the rails for this idea, Sen. Arlen Specter, a Pennsylvania
Republican, and the section's other sponsors slipped it into an unrelated,
must-pass bill to fund the Department of Justice. The plan: to make it
politically infeasible for politicians to oppose the measure.

The tactic worked. The bill cleared the House of Representatives by voice
vote, and the Senate unanimously approved it Dec. 16.

There's an interesting side note. An earlier version that the House approved
in September had radically different wording. It was reasonable by
comparison, and criminalized only using an "interactive computer service" to
cause someone "substantial emotional harm."

That kind of prohibition might make sense. But why should merely annoying
someone be illegal?

There are perfectly legitimate reasons to set up a Web site or write
something incendiary without telling everyone exactly who you are.

Think about it: A woman fired by a manager who demanded sexual favors wants
to blog about it without divulging her full name. An aspiring pundit hopes
to set up the next A frustrated citizen wants to send e-mail
describing corruption in local government without worrying about reprisals.

In each of those three cases, someone's probably going to be annoyed. That's
enough to make the action a crime. (The Justice Department won't file
charges in every case, of course, but trusting prosecutorial discretion is
hardly reassuring.)

Clinton Fein, a San Francisco resident who runs the site, says a
feature permitting visitors to send obnoxious and profane postcards through
e-mail could be imperiled.

"Who decides what's annoying? That's the ultimate question," Fein said. He
added: "If you send an annoying message via the United States Post Office,
do you have to reveal your identity?"

Fein once sued to overturn part of the Communications Decency Act that
outlawed transmitting indecent material "with intent to annoy." But the
courts ruled the law applied only to obscene material, so didn't
have to worry.

"I'm certainly not going to close the site down," Fein said on Friday. "I
would fight it on First Amendment grounds."

He's right. Our esteemed politicians can't seem to grasp this simple point,
but the First Amendment protects our right to write something that annoys
someone else.

It even shields our right to do it anonymously. U.S. Supreme Court Justice
Clarence Thomas defended this principle magnificently in a 1995 case
involving an Ohio woman who was punished for distributing anonymous
political pamphlets.

If President Bush truly believed in the principle of limited government (it
is in his official bio), he'd realize that the law he signed cannot be
squared with the Constitution he swore to uphold.

And then he'd repeat what President Clinton did a decade ago when he felt
compelled to sign a massive telecommunications law. Clinton realized that
the section of the law punishing abortion-related material on the Internet
was unconstitutional, and he directed the Justice Department not to enforce

Bush has the chance to show his respect for what he calls Americans'
personal freedoms. Now we'll see if the president rises to the occasion. 

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