FAQ: The new 'annoy' law explained

Certain types of Web sites, e-mail are now federally prohibited. What does that mean in practice?

Q: Your CNET News.com column on Monday--"Create an e-annoyance, go to jail"--referenced the text of a bill that President Bush signed last week, but I can't find the word "annoy" in it. What gives?
Figuring out exactly what Congress did takes a few minutes. But it's not too difficult.

First, go to the text of the legislation and search for Sec. 113. Note how Sec. 113. amends existing law by changing the definitions in 47 U.S.C. 223(h)(1).

Before the new law took effect last Thursday, 47 U.S.C. 223 explicitly said it "does not include an interactive computer service." The changes override that for the "to annoy" section and now say it applies to the "Internet."

Q: So what does the rewritten law now say?
The section as amended reads like this: "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."

Q: But that section is titled "Obscene or harassing telephone calls." Doesn't that mean only voice over Internet Protocol, or VoIP, is now going to be covered by the law?

That's one interpretation. But that's not how Congress actually wrote the law, however, and precise wording matters.

If politicians wanted to limit the law to VoIP, they could have followed what they did in other bills and actually used the term. They could have also limited the "annoy" requirement to contacting an individual person.

But they didn't. The law instead covers any types of "communications that are transmitted, in whole or in part, by the Internet"--not just VoIP conversations. Also, it covers any person "who receives the communications" rather than a narrower definition that could have been written as "an individual intentionally targeted as the recipient of the communications."

At the very least, Congress has an obligation to clear things up and fix the ambiguities in this law.

Q: Someone has been annoying me on the Internet, and it's getting serious. What can I do?
Keep in mind that the new law has only criminal sanctions, so you can't sue someone directly (unless they're already violating other laws). Also remember that it only applies to a person who is intentionally annoying "without disclosing his identity."

You'd have to contact your local FBI office or U.S. Attorney. But don't be surprised if they place you way down on their priority list.

Q: Some people, including law professor Orin Kerr, say the existence of the First Amendment means we shouldn't worry.
Kerr says that "if speech is protected by the First Amendment, the statute is unconstitutional as applied and the indictment must be dismissed... prosecutors know that they can't bring a prosecution unless doing so would comply with the Supreme Court's First Amendment cases."

That's correct as far as it goes. But it's not the whole story, because it amounts to trusting what lawyers call prosecutorial discretion.

The U.S. Justice Department made the same argument in its unsuccessful defense of the Communications Decency Act. Prosecutors claimed that the CDA was constitutional because the Justice Department would never apply it in an unconstitutional manner.

Judge Dolores Sloviter rejected that argument, writing: "The government makes yet another argument that troubles me. It suggests that the concerns expressed by the plaintiffs and the questions posed by the court reflect an exaggerated supposition of how it would apply the law, and that we should, in effect, trust the Department of Justice to limit the CDA's application in a reasonable fashion that would avoid prosecution for placing on the Internet works of serious literary or artistic merit. That would require a broad trust indeed from a generation of judges not far removed from the attacks on James Joyce's Ulysses as obscene."

Q: If the law does violate the First Amendment, why would Congress enact it?
There's no good answer to that question. When our elected representatives were drafting this law over the last few months, they could have cleared things up.

The law criminalizes certain acts intended to "annoy, abuse, threaten, or harass any person." Deleting the word "annoy" from that lineup would probably have eliminated the free speech problems. But Congress chose not to do so.

An earlier version that the House approved in September had radically different wording. It was reasonable by comparison, and only criminalized using an "interactive computer service" to cause someone "substantial emotional harm." That was changed in the final version.

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