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Lawsuit challenges new 'e-annoyance' law

Law targeting e-mail, Web posts that "annoy" will be tested in suit filed by provider of service that lets people send anonymous e-mail.

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
2 min read
A new law targeting "annoying" e-mail messages and Web posts is being challenged in federal court.

The plaintiff, a Web site that lets people send anonymous e-mail for a fee, said the suit was necessary because the law is so broad it makes providing the service a crime.

"What we are seeking to do is have that portion of the statute declared unconstitutional," said Charles Mudd, an attorney in Chicago who's representing TheAnonymousEmail.com.

As reported earlier by CNET News.com, President Bush last month signed into law a massive bill for the Justice Department that includes the new criminal sanctions aimed at Internet communications that "annoy." The law prohibits anyone from posting annoying Web messages or sending annoying e-mail messages without disclosing his or her true identity.

The Justice Department did not immediately respond to a request for comment.

TheAnonymousEmail.com, operated by a privately held Scottsdale, Ariz., company called The Suggestion Box, offers the ability to send anonymous messages for a $19.95 subscription fee.

It's illegal to annoy

A new federal law states that when you annoy someone on the Internet, you must disclose your identity. Here's the relevant language.

"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."

Howard Baer, the company's president, said the new law is so problematic it could criminalize filing a complaint against a public corporation under the Sarbanes-Oxley Act--if, that is, executives claimed the complaint was intended to "annoy" them.

The challenge to the "annoy" law, filed in federal district court in Arizona, asks for a preliminary injunction barring federal prosecutors from enforcing the rule. It claims the law's invocation of the word "annoy" is "ambiguous, overbroad and vague" and violates the First Amendment and the Fifth Amendment to the U.S. Constitution.

The law, called the Violence Against Women and Department of Justice Reauthorization Act, amends existing law dealing with telephone calls by extending new criminal sanctions to the Internet. Unlike other legislative proposals dealing with voice over Internet Protocol (VoIP), the "annoy" restrictions apply broadly to any form of Internet communications, not just VoIP.

Eugene Volokh, a UCLA law professor who wrote a book on the First Amendment, has said the "annoy" law may violate Americans' free speech rights. "Though the desire to annoy may sometimes be petty...it shouldn't strip the speech of constitutional protection," Volokh said.