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Perspective: Create an e-annoyance, go to jail
Cnet News ^ | January 9, 2006 | Declan McCullagh

Posted on 01/09/2006 10:26:02 AM PST by Halgr

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 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."

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 Suck.com. 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 Annoy.com 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 Annoy.com 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 it.

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.


TOPICS: Constitution/Conservatism; Editorial
KEYWORDS: firstamendment; legislation
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1 posted on 01/09/2006 10:26:04 AM PST by Halgr
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To: Halgr

http://news.com.com/Create+an+e-annoyance%2C+go+to+jail/2010-1028_3-6022491.html?part=rss&tag=6022491&subj=news

I don't know why the link in the post didn't work?


2 posted on 01/09/2006 10:29:16 AM PST by Halgr (Once a Marine, always a Marine - Semper Fi)
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To: Halgr

Less government, right? Right.....


3 posted on 01/09/2006 10:31:52 AM PST by LongsforReagan (Dick Cheney is the best elected official in this country. Period.)
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To: Halgr

Here's a solution. Don't send annoying messages anonymously.


4 posted on 01/09/2006 10:32:04 AM PST by bkepley
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To: Halgr

The only good part is this "who receives the communications"

So when we trash Hitlery, as long as it is not directly addressed to her, we should be OK.


5 posted on 01/09/2006 10:33:00 AM PST by staytrue (MOONBAT conservatives are those who would rather lose to a liberal than support a moderate.)
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To: Halgr

Does that Star Spangled Banner still wave
Ore' the land of the free
And the home of the perpetually offended


6 posted on 01/09/2006 10:35:30 AM PST by GaltMeister (“All that is necessary for the triumph of evil is that good men do nothing.”)
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To: bkepley
Your message greatly annoyed me.

Reday to face the legal consequences?

7 posted on 01/09/2006 10:37:30 AM PST by tallhappy (Juntos Podemos!)
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To: Halgr
Sounds like this might only apply if the "annoyance" is sent directly and personally to the recipient via email. I guess FReepmail would apply.

What department is the guv going to create to handle the millions of complaints that will flood in?
8 posted on 01/09/2006 10:37:38 AM PST by Bob J (RIGHTALK.com...a conservative alternative to NPR!)
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To: tallhappy

Does this mean that after we sick the VK on a troll we watch them get prosecuted also? BONUS!


9 posted on 01/09/2006 10:39:32 AM PST by IllumiNaughtyByNature (If Islam is the Religion of Peace, they should BEHEAD their PR guy!)
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To: Halgr

But in order to be sent to prison, a jury trial would be required. The offended person would have to prove beyond a reasonable doubt that he is annoyed.


10 posted on 01/09/2006 10:40:13 AM PST by proxy_user
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To: Halgr

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


Simple. People "annoy" polticians by criticizing them.

They don't want people to interfere with the life style they feel they have become deserving of.


11 posted on 01/09/2006 10:40:33 AM PST by ZULU (Non nobis, non nobis, Domine, sed nomini tuo da gloriam. God, guts, and guns made America great.)
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To: bkepley

Benjamin Franklin, Alexander Hamilton, James Madison, and John Jay would be going to jail under this ridiculous statute.


12 posted on 01/09/2006 10:43:08 AM PST by angkor
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To: Halgr

does this apply to the DUmpers ?


13 posted on 01/09/2006 10:46:20 AM PST by UB355 (Slower traffic keep right >>>>>>>>>>>>>>)
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To: Bob J

What about SPAM? That annoys me. Can we file suit?


14 posted on 01/09/2006 10:46:57 AM PST by LongsforReagan (Dick Cheney is the best elected official in this country. Period.)
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To: angkor

Almost every poster in this site would be prosecuted as well.

Everything annoys somebody.


15 posted on 01/09/2006 10:47:06 AM PST by wingnutx (tanstaafl www.punk-rock.com)
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To: K4Harty

No, more like the troll prosecutes us.


16 posted on 01/09/2006 10:49:56 AM PST by tallhappy (Juntos Podemos!)
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To: bkepley
How can you avoid it? When I want to complain to Frist (I have two demorat senators) I have to provide a phony address in his home state to get the message through. Am I violating this law?

When I send a nasty email to a senator from a state other than mine I must do the same.

This is BS.
17 posted on 01/09/2006 11:06:55 AM PST by MiHeat
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To: Halgr

Let me guess.

Congress probably exempted themselves from this law, just like the "Do Not Call" law.


18 posted on 01/09/2006 11:10:56 AM PST by Mr. Brightside
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To: MiHeat

For once the ACLU might do some good???




MiHeat - you'll have to send a message by snail-mail in order to avoid your problem....I would think.


19 posted on 01/09/2006 11:19:55 AM PST by Halgr (Once a Marine, always a Marine - Semper Fi)
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To: bkepley
Here's a solution. Don't send annoying messages anonymously.

I'm annoyed by your comment.

20 posted on 01/09/2006 11:30:34 AM PST by PAR35
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