Posted by Orin Kerr:
A Skeptical Look at "Create an Annoyance, Go to Jail":
http://volokh.com/archives/archive_2006_01_08-2006_01_14.shtml#1136873535
Declan McCullagh has [1]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 [2]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 [3]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 examples of this is United States v.
Popa, 187 F.3d 672 (D.C. Cir. 1999). In Ropa, 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 the doing
so would satisfy 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.
References
1.
http://news.com.com/Create+an+e-annoyance%2C+go+to+jail/2010-1028_3-6022491.html?part=rss&tag=6022491&subj=news
2. http://technorati.com/search/declan
3.
http://www4.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000223----000-.html
_______________________________________________
Volokh mailing list
[email protected]
http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
