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 THE LIBERTARIAN ENTERPRISE Number 351, January 22, 2006 "Down With Tolerance!"
Does New Cyberstalking Law Criminalize Free Expression?
Special to TLE Fiery debate surrounds Section 113 of the Violence Against Women Act—a last minute addition to the act titled Preventing Cyberstalking. Is the new law 'evil' or merely redundant? Will it destroy Internet communications as we know them or have no effect? Do members of Congress actually read the measures upon which they vote? Section 113 was signed into law by President Bush on January 5. It amends 47 U.S.C. 223, the telecommunications harassment statute that is rooted in the Communications Act of 1934. The telecommunications statute prohibits anyone from using a telephone or a telecommunications device "without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person." In application this has meant that you cannot anonymously annoy another person through the phone lines. Penalties include two years in prison and onerous fines. Section 113 amends the statute 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." Click here to see the specific additions to and deletions. On January 9, electronic-freedom guru Declan McCullagh published an article entitled "Create an e-annoyance, go to jail." Almost instant furor ensued. McCullagh opened by declaring, "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." McCullagh and those who agree with his interpretation of Section 113 represent 'the law is evil and will damage the Internet' side of the debate. Their warnings revolve around the two "A"s: "annoyance" and "anonymous." First Amendment scholar Eugene Volokh argues that Section 113, if consistently applied, will criminalize annoying Web speech that is also meant to inform. For example, the anonymous creator of a blog that criticizes a politician may sincerely wish the target to become uncomfortable enough with public backlash to change his or her behavior. If the site engages in damaging lies, then existing libel laws apply. Otherwise the right to state opinions under a pen name has been generally recognized by the First Amendment, with certain exceptions such as threats. The parallel of a 'pen name' is significant because Section 113 does not merely extend traditional protections from an old technology (phones) to a new one (the Internet). The Web is more like publishing than telecommunication. Phone calls are considered one-on-one communications and so, as Volokh comments, they are "rarely of very much First Amendment value." By contrast, the Internet is public speech. This fact alone makes Section 113 different in kind from 47 U.S.C. 223 and not merely an extension of the same principle. Moreover, "annoyance" and "intent to annoy" are unconstitutionally vague terms. By contrast, harassment seems well defined: stalking, impersonating someone, threats, sending viruses through email, libel, contacting a target's family and co-workers. Critics of Section 113 are "not" defending a "right" to harass but the right to be publicly annoying, which is no more than freedom of speech. As someone who runs electronic bulletin boards, I've seen both harassment and annoyance in practice. Annoyance is when a churlish poster uses a screen name to flame another member because of a comment on Iraq or abortion. Harassment is what recently led to my closing a bulletin board; a member's real name was "outed" and his "real life" was shadowed by threats. As it stands, Section 113 makes no distinction between childish and menacing behavior. Interestingly, those who argue against McCullagh do not necessarily argue for Section 113. Rather, they point to the irrelevance of the "annoyance" reference. Former Justice Department prosecutor Orin Kerr states that the statute and VAWA amendment can only be used to prohibit speech that is not protected by the First Amendment. In short, free speech protections still apply to the Internet. Daniel Solove, associate professor at the George Washington University Law School, maintains that an anti-anonymity provision will apply only in cases when the annoyance is part of harassment. Others argue that Section 113 will not be applied outside of the context of its title: "Preventing Cyberstalking." But those who remember how the Racketeer Influenced and Corrupt Organizations Act (RICO), originally written to target organized crime, was eventually used against pro-life groups in the 'abortion wars' will not be reassured. With experts and attorneys already contradicting each other, two things seem clear. First, we will discover what Section 113 truly means when someone challenges the law. A candidate being mentioned on the Internet is Annoy.com; the site offers a "service by which people send politically incorrect postcards without being required to furnish their identity." The site owner Clinton Fein has a history of "seeking declaratory and injunctive relief" against the Communications Decency Act of 1996 through which "indecent" computer communication that is intended to "annoy" was criminalized. Fein believes Section 113 "warrant[s] a constitutional challenge." Second, this is a hastily written, bad law that was tacked onto a popular bill. Section 113 may seek to protect against real threats or violence but its language is so vague as to endanger much broader political discussion. It illustrates why the organization Downsize DC is promoting a "Read the Bills Act," which would require Congressmen to read measures before voting on them. It is sad that such a commonsense goal sounds utopian.
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