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FAQ: The new 'annoy' law explained

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

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
6 min read

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.

Q: Wait a moment. I'm told this law merely updated an existing prohibition on "annoying" or harassing someone through the telephone.
That's what Sen. Pete Domenici, a New Mexico Republican, claims in a press release, and it's sort of true.

The old law criminalized making an anonymous telephone call that's designed to annoy someone, which sounds pretty reasonable. But the new law applies broadly to any form of Internet communication, and it is not limited to individual-to-individual communications such as e-mail or instant messaging.

It's hardly clear that the federal government needs to criminalize this sort of thing, anyway. State governments are more than capable of doing so.

Q: I read a post by Dan Solove that says the law is just antiharassment, so we shouldn't be worried. Is he right?
Solove, who's a law professor at George Washington University, says: "'Annoy' is part of the intent element of the statute--it requires the intent to annoy, abuse, threaten or harass. Far from an antianonymity provision that applies whenever a person annoys another, it is merely a prohibition on harassment."

If all the law did was target harassment, nobody would care. Instead, it also restricts certain behaviors that "annoy."

Most people realize there's a difference between annoying someone and harassing them. If I stalk someone, impersonate them in chat rooms, and repeatedly call them at 3 a.m. and hang up, that's harassment. Nobody's arguing that should be legal.

But annoyance? If I set up an incendiary Web site that has a single purpose--say, to annoy some politician I dislike--that should be permissible. That's why the law is far more than an "antiharassment" law.

Q: It's not enough for someone to find the site annoying. I have to intend for it to be annoying, right?
Correct. The relevant section of the law uses the phrase "without disclosing his identity and with intent to annoy." A thin-skinned reader becoming irrationally annoyed shouldn't be sufficient to trigger criminal liability.

Q: The law criminalizes certain Internet actions done to "annoy, abuse, threaten, or harass any person." That means someone has to do all four things, right?
Nope. It's an or connector, not an and connector. Violating any one of the four prohibitions would be unlawful.

Q: I've read a post by Ann Bartow, a professor at USC Law School, saying that e-mail and blogs may not be covered by the law.
This is a little complicated, but let's walk through it. Bartow writes: "I may be missing something, but I don't think either e-mail or Web logs would be considered 'telecommunications devices' that would be subject to the stated prohibitions (which, in fairness, are awfully vague)."

In general, for the relevant section of the U.S. Code, that's right.

But it seems that Congress intended a broader interpretation for the "annoy" prohibition. The new law sweeps in "other types of communications that are transmitted, in whole or in part, by the Internet"--and the most straightforward reading of that would cover Web logs and e-mail.

If politicians wanted to limit the "annoy" prohibition to VoIP, they could easily have done so. But they didn't.

Q: What does the word "annoy" mean, anyway?
Vagueness is one of the law's problems. The Merriam-Webster dictionary offers two definitions of annoy. One is merely to "disturb or irritate," and the other is "to harass."

Q: Is this going to be challenged in court?
Maybe. Clinton Fein, who runs Annoy.com, has said he might. Fein has challenged a related law in the past.

But lawsuits are expensive, and there's no guarantee of success.

Q: If the "intent to annoy" law already was on the books for phone calls and hasn't been a problem, why should I be concerned?
There are two reasons. First, criminalizing anonymous annoying phone calls is a lot different from criminalizing anonymous annoyances on the Internet. Phone calls are a one-to-one communication to a specific person; blog posts generally are not.

Second, it's worrisome that the U.S. Congress chose to expand the scope of the existing law to the Internet. Instead, they should have limited it to comply with the First Amendment.