January 09, 2006

posted by Kaimipono D. Wenger

Declan's article is misleading. The provision extends a telephone harassment law to apply to email. Declan describes the provision as applying whenever a person "annoys" another: "A new federal law states that when you annoy someone on the Internet, you must disclose your identity."

But that's not what the law says. Instead it provides:

"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."

The original telephone harassment provision, 47 U.S.C. § 223, provides:

(a) Prohibited acts generally
Whoever—
(1) in interstate or foreign communications—
(A) by means of a telecommunications device knowingly—
(i) makes, creates, or solicits, and
(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person;
(B) by means of a telecommunications device knowingly—
(i) makes, creates, or solicits, and
(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication;
(C) 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;
(D) makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; or
(E) makes repeated telephone calls or repeatedly initiates communication with a telecommunications device, during which conversation or communication ensues, solely to harass any person at the called number or who receives the communication; or
(2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity,
shall be fined under title 18 or imprisoned not more than two years, or both.

I'd be willing to bet (without having done any research) that there are cases out there limiting the original statute to situations where the fact of the call is annoying, not something annoying said on non-annoyingly placed call. (E.g., a normal telephone conversation that then devolves into an argument.) If you keep "fidelity in translation" in applying that provision to the Internet, then it would apply to annoyingly *sent* transmissions (e.g., mail-bombs), but not transmission where the sole annoyance is in the content (a vituperous blog post). Again, this is guesswork.

Thanks for the clarification, Dan. I'm going to update the post.

Dan's comment seems to indicate (correct me if I'm wrong) that the statute will still affect only those who send a "communication which is obscene, lewd, lascivious, filthy, or indecent." Kaimi, the language you quote is in (a)(1)(A) but the amendment actually only changes (a)(1)(C). (a)(1)(C) previously prohibited using a telephone or "telecommunications device" without disclosing your identity and "with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications." Section 113 of the VAWA renewal adds to the definition of "telecommunications device," solely for the purpose of (a)(1)(C), "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." I.e., any device used to transmit content to the Internet.

Dan's post, if I read him right, points out that *actual* annoyance does not violate the statute; only transmitting communications with the intent to annoy does. But I think under a dictionary definition of "annoy" that may still sweep pretty broadly. (E.g., I correct someone's grammar on a blog, after they've made clear they find such corrections annoying.) My guess though, that I made above and have yet to actually research, is that the definition of "annoy" is more limited than that. And if it isn't, it should be, in both contexts.

What do you think of Michael Covington's reasoning in the comments at the end of the original article?

Kaimi writes: "Dan's comment seems to indicate (correct me if I'm wrong) that the statute will still affect only those who send a 'communication which is obscene, lewd, lascivious, filthy, or indecent.'"

I'm not quite in agreement. The requirement of sending a "communication which is obscene, lewd, lascivious, filthy, or indecent" is from subsection (A) of section (a)(1) of the statute. Declan's quoted provision is subsection (C). Subsections (A) through (E) are separated by an "or," and thus a person need only violate one of the subsections, and that could be (C) alone. Therefore, the requirement Kaimi quotes from subsection (A) doesn't apply to subsection (C).

The statute is badly written, and if not interpreted narrowly, it would run into constitutional vagueness problems. The key part of the statute is the mens rea (mental state) provision, which means that a person must have the "intent to annoy, abuse, threaten, or harass any person." I'm certain that this provision will be read narrowly to apply to individuals who intend to persistently or menacingly harass a person; it will likely involve a kind of perniciousness or maliciousness. It is true that the statute says that the intent can be to "annoy," but if this is read broadly, and not in context with the statute's purpose, I'd bet the statute would run into constitutional problems and be void for vagueness.

Bruce is correct about my point -- I was arguing that Declan ignores the fact that one must intend to annoy, and that the statute doesn't apply merely to communications people find annoying. As Bruce writes: "Dan's post, if I read him right, points out that *actual* annoyance does not violate the statute; only transmitting communications with the intent to annoy does." This is a big difference, and an important one. The statute as it currently is written isn't the model of legislative drafting; it is certainly written broadly and in a vague manner. But if read Declan's way to omit intent, the statute becomes ridiculously broad and vague.

At Boing Boing, a reader takes issue with my characterization of the statute: "[I]t seems obvious to me that anonymity is absolutely and clearly a necessary (but not sufficient) condition for there to be an offense under this law." I never said that the statute didn't require anonymity as a necessary condition -- I said: "Far from an anti-anonymity provision that applies whenever a person annoys another, it is merely a prohibition on harassment." What I was attempting to express was the fact that anonymity is a limiting factor in the law. The law is about harassment, and it limits its scope to those acting anonymously. But the law clearly is not a prohibition on anonymously annoying another person. It is far more restrictive than that. One must have a particular culpable state of mind in order to be guilty of violating the law.

Not a lawyer and this seems so obvious that it's probably stupid to think it hasn't been considered, but didn't the only change in section 113 involve adding a C to 223(h)(1)?

And 223(h)(1)(B) specifically excludes "interactive computer services", defined as "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".

That seems to exclude all Internet postings, doesn't it? Or am I misunderstanding this? In any event, I'm wondering if this isn't really about VOIP.

There's been a major regulations debate for the past few years about the nature of VOIP. The FCC has consistently found that VOIP is an information service, not a telecommunications service. So without that new clause, someone could arguably say that they haven't used a telecommunications device to make a telephone call.

And of course, if I'd googled first, I could have even provided a cite.

Cite:

"Preventing Cyberstalking. To strengthen stalking prosecution tools, this section expands the definition of a telecommunications device to include any device or software that uses the Internet and possible Internet technologies such as voice over internet services. This amendment will allow federal prosecutors more discretion in charging stalking cases that occur entirely over the internet."

Greetings. I found you're site by instapundit.com. Does anyboydy here think this prolly is a stelth law by liberal Demcorats? It sure looks that way to me form where I am standign. A little help on this subject would be helopful. I am in a bigtime argument on some liberal blogs about this issue.

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"Freedom aint free its two bucks sventy three:" - GastroGuy269

It could easily be argued that trolls have the intention to annoy and even harass. The law seems to be open to broad interpretation on a subjective basis. Where is the First Amendment in this?

Dan,

You're right that it's a horribly drafted statute; I didn't realize the full import even in my update.

However, even as drafted I think a decent case can be made that under general principles of statutory construction and ejusdem generis, the "intent to annoy" provision of (C) has to incorporate an implied limit from either (A)-(B) or (D)-(E) -- that is, the act must be obscene/sexual (the (A)-(B) prong) or intending solely to harrass (the (D)-(E) prong).

After all, if (C) is truly not subject to any limit, it is likely to be unconstitutionally vague, as well as chilling.

Finally, the "intent to annoy" is going to be awfully hard to show in many cases. If it's an e-mail saying "I hope this bugs you" then it's pretty open-shut. But an e-mail that says "you suck" -- would that, by itelf, be evidence of intent to annoy?

I'm not a lawyer and become confused, bored, overwhelmed, whatever by trying to read and interpret the fine points of these things.

I did have a situation several years ago in which I was receiving hundreds of harrassing calls a day by somebody from out of state. They overwhelmed my voice mail service and virtually shut down my ability to use my phone. The work I was doing with a wide range of people (film production) I depended on to call me forced me to retain the number or lose imporant job opportunities.

I tried to have this stopped by calling the local police. Since the calls were originating from out of state, they couldn't help. I tried calling the police of the town that the calls were coming from but because I was not in that jurisdiction, and I assume the harrassment was not happening there, they could not do anything. And I contacted the FBI but to no avail. The laws in place at that time simply did not cover the situation. This was in the early 90s so I don't know if things have changed since then. And perhaps with a good lawyer I could have addressed it more effectively but I was just a working stiff trying to start my career and with little time or money to go that route. I finally changed my number and dealt with the problems as they came from that.

I remember being outraged that somebody could create such havoc in my life, as well as my girlfriend's and roommates' without any way to put a stop to it.

People can argue that I should have handled the situation differently (changed phone numbers earlier, never crossed a crazy person in the first place etc.) but I took every step that seemed feasible to me at the time, and I sought advice from many sources.

I'm not suggesting that this legislation is properly written or not, I'm simply not qualified to answer that, but if it is an extension of existing laws that apply to telephone communication that don't seriously limit free speech and protect people from malicious harrassment, then I can accept the concept. I would expect that new technologies require new legislation. What some people consider "annoying" can be much more serious and have much more serious consequences to the person on the receiving end.

Anyway, it seems like there are some legal brainiacs in this discussion thread so there is my layman's take on it.

I spent a fair amount of time yesterday trying to run this down and sending emails and posting comments about it. I didn't blog it since I'm so new to the blogosphere that nobody actually reads my blog yet.
I am not a lawyer, so take anything I say with a grain (at least a 300 pound grain) of salt.What I was able to figure out so far:
1)The relevant section (113) pertains to cyberstalking.
2)The telecom law cited pertains to telephone harrassment.
3)The statute is horribly convoluted. (Big surprise there)....
From which I tentatively concluded:

The statute is a (probably badly written) attempt to extend existing telephone harrassment provisions to cover internet telephony.

I am not saying he did so intentionally, but I think McCullagh has misinterpreted what the statute is actually saying - or trying to say. This does give an interesting lesson on how to screw something up by writing it by committee....

FWIW: My parsing of the related statutes is here - http://www.nyu.edu/classes/siva/archives/002638.html

Via Instapundit:

http://volokh.com/archives/archive_2006_01_08-2006_01_14.shtml#1136873535

Looks like I called it more or less correctly, though the lawerly types have even more understanding of precedent.

EB's situation is, I think, exactly what the statute is intended to cover. I think similar harassment could occur by e-mail, or text message, or IM, etc., as well as VOIP.

Ann, I don't think I agree with your conclusion (and Cal Lanier's) that the statute doesn't apply to e-mail. I think it would cover e-mail harassment. Granted, (h)(1)(B) still says that "interactive computer services" are not covered. An "interactive computer service" is an "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." (Emphasis added.) So an information computer service is an ISP and its equipment. But the new (h)(1)(C) adds the following to the definition of "telecommunications device" for purposes of (a)(1)(C) going forward: "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." I believe that includes not just a VOIP phone, but an end-user's computer and e-mail application. So, using your computer to send an e-mail with the intent to annoy, etc. the recipient of a communication without disclosing your identity is prohibited. Let me know if I'm missing something.

As to Michael Covington's point raised by MattJ above, ordinarily words in a statute should be read so that they are not superfluous, so I don't think "annoy" can be safely assumed to be synonymous with "abuse, threaten, or harass."

Bruce,
The statute prohibits "mak[ing] a telephone call or utiliz[ing] 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; ...."

Is e-mail a "telecommunications device"? I don't think so. Not by any definition of "telecommunications device" I've seen so far, at any rate.

Meant to add, but forgot, that Section 113 sepecifically states:

"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."

So the amendments do not, I don't think, add e-mail to the realm of "telecommunications devices" if it wasn't there before.

Yes. Thanks, Ann. I've been mildly worried I'd gone mad, what with everyone so damn sure that this one change suddenly made online annoyance illegal. I wrote a second blog entry on it that covers some of the same points you did.

I don't know about e-mail, but a computer is a "device ... that can be used to originate ... communications that are transmitted, in whole or in part, by the Internet." Similarly, Outlook Express is "software ... that can be used to originate ... communications that are transmitted, in whole or in part, by the Internet." So, using Outlook Express on a computer to compose and send an e-mail falls within 223(a)(1)(C) as amended (assuming anonymity and intent to annoy).

I don't quite understand the rule of construction. Clearly the new 223(h)(1)(C) affects the meaning given to the term "telecommunications device" in section 223(h)(1) -- that's the whole point, even if it's just a clarification. One way to read it is as saying that the meaning of telecommunications device should not be expanded or contracted in contexts outside of 223(a)(1)(C) given the amendment -- so it can't be assumed that a VOIP phone is not a "telecommunications device" for purposes of 223(a)(1)(A) for instance. Alternatively, perhaps it's a retroactivity provision -- the amendment does not change the definition for purposes of determining the liability that attached to any activity that occurred before the enactment of the amendment.

The legislative history is unhelpful. The House Report was prepared before the provision was inserted in the bill (Section 509, on cyberstalking, is now Section 114). The Senate section-by-section analysis, at S13763 of the Congressional Record, merely states: "To strengthen stalking prosecution tools, this section amends the Communications Act of 1934 (47 U.S.C. 223(h)(1)) to expand the definition of a telecommunications device to include any device or software that uses the Internet and possible Internet technologies such as voice over internet services. This amendment will allow federal prosecutors more discretion in charging stalking cases that occur entirely over the internet." Clearly the focus is on VOIP, but the use of the words "such as" indicates to me that the provision is not intended to be limited to voice-only communications. I did not see any mention of the rule of construction.

Cal, I don't think exclusion of "interactive computer services" from the definition of "telecommunications devices" means that any communication that happens to pass through an interactive computer service is exempt from 223(a)(1)(C). To analogize, suppose a statute prohibits pouring dangerous chemicals into the street, but excludes the city sewer system from the definition of "street." Now the definition of "street" is expanded to include "sink, drain, or toilet connected to the city sewer system". Causing the chemicals to pass through the sewer system is not itself illegal. But dumping them down the drain is.

It is kind of instructive to take a look at McCullagh's website. Methinks there is a tad bit of a political motivation for the spread of this misinformation.

As for me, nothing Mr. McCullagh ever reports in the future will be considered as reliable or accurate. I wasted entirely too much time on his foolishness.

CNet should have issued a retraction or correction by now. And the ACLU lawyer quoted in the original story should be disciplined.

http://www.politechbot.com/

Update.

Well, Eugene Volokh says there may be a problem after all.

http://instapundit.com/archives/027957.php

Link via Instapundit

It's been pointed out elsewhere that in Reno vs. ACLU (1996) the Supreme Court ruled that a modem is a "telecommunications device" under the existing portion of the law, that the interactive services exception doesn't apply to it, and that the exception protects ISPs, but not users.

Go back and read Reno v. ACLU (you can do so here): http://www.legi-internet.ro/reno_aclu.html
I don't think you summarize it accurately.
It may be that e-mail and blogs have been "telecommunications devices" (and not "interactive computer services") since Reno I was decided but if that is true, why panic now? If your reading is correct, the new Act doesn't change anything, because "annoying by telecommunicationd device" was already a crime.

From the date Ken used (1996), I think he meant to refer to the district court opinion, 929 F. Supp. 824. Footnote 5 states:

The Act does not define "telecommunications device". By Order dated February 27, 1996, we asked the parties to address whether a modem is a "telecommunications device". Plaintiffs and the Government answered in the affirmative, and we agree that the plain meaning of the phrase and the legislative history of the Act strongly support their conclusion. "Telecommunications" under 47 U.S.C.  153(48) means "the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form of content of the information as sent and received." The plain meaning of "device" is "something that is formed or formulated by design and usu[ally] with consideration of possible alternatives, experiment, and testing." Webster's Third New International Dictionary, 618 (1986). Clearly, the sponsors of the CDA thought it would reach individual Internet users, many of whom still connect through modems. See, e.g., 141 Cong. Rec. S8329-46 (daily ed. June 14, 1995) (statements of Sen. Exon and Sen. Coats).

The resolution of the tension between the scope of "telecommunications device" and the scope of "interactive computer service" as defined in 47 U.S.C.  230(a)(2), see infra note 6, must await another day. It is sufficient for us to conclude that the exclusion of  223(h)(1)(B) is probably a narrow one (as the Government has argued), insulating an interactive computer service from criminal liability under the CDA but not insulating users who traffic in indecent and patently offensive materials on the Internet through those services.

Congressional clarification of this point doesn't seem superfluous to me.

Does anybody hear have some infromation on the this TOPIC?? Of ilegal annoyinG people on teh Intenrnet?: I asked POLITEly before, so weheres the BEEF?!

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"'Ask a Silly question, get a Answer back taht YOU ARE A LEIBERAL> - GastroGuy269