Update: Professor Michael Froomkin of the University of Miami School of Law sends word from a colleague at the EFF, who says this story is indeed overblown (the exact phrase was “much less here than meets the eye”.)
Update 2: Professor Orin Kerr of the George Washington University School of Law has another skeptical look at the CNET story:
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. …
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.
Now, those of us who are worried about the fate of the First Amendment might see this as less than comforting. But that’s a post for another day.
Oh, and this is not the first time I’ve been burned by CNET’s Declan McCullagh. As someone once said, “Fool me once, shame on — shame on you. Fool me — you can’t get fooled again.”
This story sounds like something out of The Onion, but CNET News reports that it is depressingly true:
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.”
Buried deep in the new law is Sec. 113, an innocuously titled bit called “Preventing Cyberstalking.” It rewrites existing telephone harassment law to prohibit anyone from using the Internet “without disclosing his identity and with intent to annoy.”
To grease the rails for this idea, Sen. Arlen Specter, a Pennsylvania Republican, and the section’s other sponsors slipped it into an unrelated, must-pass bill to fund the Department of Justice. The plan: to make it politically infeasible for politicians to oppose the measure.
The tactic worked. The bill cleared the House of Representatives by voice vote, and the Senate unanimously approved it Dec. 16.
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.”
This is wrong on about a thousand different levels. It’s also symptomatic of a legislative process in the United States that allows important clauses to be written into complex laws at the last minute, so that no one – legislators and citizens alike – has a chance to review them before they’re voted on.
Anonymous speech is an essential component of the Internet. As a Web site owner, I can exercise complete control over who is allowed to post on my site. I allow anonymous postings and only delete or moderate those that cross fairly bright lines. But under this law, anyone who comments on this site anonymously is potentially subject to Federal criminal prosecution if their post is “annoying.” Who decides what that means?
By the way, the sponsor of this bill is Rep. James F. Sensenbrenner, Jr. (R-WI). He is one of the biggest assholes on the planet. He’s the one who gaveled a hearing on the Patriot Act to a close and shut off all microphones rather than listen to witnesses who opposed the extension of the Act. He abused his powers as a committee chairman to rewrite the descriptions of amendments proposed by members of the opposing party so that the authors appeared to be protecting sexual predators. And who can forget his sensitivity to hurricane victims who were required by the Bankruptcy Act to come up with records that were wiped out by wind, rain, and floodwaters? As the Houston Chronicle reported:
A few weeks ago, consumer advocates and bankruptcy lawyers urged Congress to postpone the new law for Katrina victims. Although several lawmakers backed the plan, it was blocked by Rep. James Sensenbrenner, R-Wis., the law’s author.
As Sensenbrenner so eloquently put it, those who wanted the changes “ought to get over it.”
Feel free to leave a comment. Under the terms of the new law, though, if you have anything annoying to say about Rep. Sensenbrenner or me, you’d better sign your real name.
Ed Bott 