Re: [SAGE] [Fwd: [IRR] Create an e-annoyance, go to jail]

[Ted Nolan <Ted.Nolan@sri.com>]

In message <0ISW00KAVFZBQW@mercury.esd.sri.com>you write:
>
>On 2006.01.09 11:10:39 -0800, Strata R. Chalup wrote:
>>
>> This looks like 10 pounds of trouble in a 5 pound box.
>
>Just a first impression, but I'm having a hard time seeing the policing and
>provability of said offense in all but the most simple cases.
>
>It sounds like a great way to frame someone to be harrassed and fined/jailed
>by the feds though.
>
>I agree with DH.  I want to watch this on play out with my local congress
>person.
>
>--Robert

Seems to be a false alarm.  From lawblogger Orin Kerr at the Volokh Conspiracy:

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

	A Skeptical Look at "Create an E-annoyance, Go to Jail":

	Declan McCullagh has 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 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 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 example of this is United States v. Popa, 187
	F.3d 672 (D.C. Cir.  1999). In Popa , 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 doing so would comply with 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.

	UPDATE: Cal Lanier takes a look, and concludes that this is
	just about making sure the telephone harassment law applies to VOIP.
	(http://www.footballfansfortruth.us/archives/001318.html)



				Ted