This act still seems very unclear to me even after reading the post at Concurring Opinions. Previously: Declan McCullagh reported that annoying someone via the internet is now a federal crime. [via] Related: The Erosion of Anonymous Internet Speech: Ne…

This act still seems very unclear to me even after reading the post at Concurring Opinions. Previously: Declan McCullagh reported that annoying someone via the internet is now a federal crime. [via] tags: free speech anonymous…

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“‘Ask a Silly question, get a Answer back taht YOU ARE A LEIBERAL> – GastroGuy269

Declan McCullagh reported that annoying someone via the internet is now a federal crime. [via] update: Concurring Opinions tries to clear up this mess tags: free speech anonymous…

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.

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.

About anonymous blog commenting: I came across this entry at Disarranging Mine. I made a bit of a crack about spammers there but I wonder if some of the interpretations I

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

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

Link via Instapundit

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/

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.

“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.

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.

Football Fans for Truth thinks it’s only limited to actual voice calls, placed via VOIP services, which would make a hell of a lot of sense. Orin Kerr of the Volokh Conspiracy says so too. Emily Latella ON: Well… nevermind!…

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.”

Annoy someone online (anonymously); go to jail (Concurring Opinions) [Further, better, somewhat debunkifying legal analysis of this story]…

… to see which of our lucky trolls will be spending two years in the custody of the U.S. Department of Justice! I’m not making this up, folks — it’s now illegal to annoy someone via the Internet unless you…