| Milforum Moderator | Here's another person's take on it. Quote:
let's look at the law in question, and address some of the words and their meaning. First, the changes (I've put new additions in bold):(h) Definitions
For purposes of this section—
(1) The use of the term "telecommunications device" in this section—
(A) shall not impose new obligations on broadcasting station licensees and cable operators covered by obscenity and indecency provisions elsewhere in this chapter;
(B) does not include an interactive computer service; and
(C) in the case of subparagraph (C) of subsection (a)(1), includes 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 (as such term is defined in section 1104 of the Internet Tax Freedom Act (47 U.S.C. 151 note)).'.
Note this very important point: subparagraph (B) still excludes "interactive computer service" from the definition of "telecommunications device." But what is happening to subparagraph (C) subsection (a)(1)? First, let's have a look at that subsection, which occurs under "Prohibited acts generally." (Note that the bolded subparagraph (C) above is not the same as subparagraph (C) subsection (a)(1), which I am about to quote.) (C) [Whoever] makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications;
As a quick note, it should be pointed out that "annoy" here has a much more limited meaning here than mere everyday annoyance. Rather than cite scores of precedent, we need to only look at how the law has played out before the manner of communication was addressed with this new bill. Suffice it to say that previous to this bill, it was already illegal "to annoy" in this manner (namely, with intent) using a telephone, and yet we all know that the black helicopters won't come swooping in because of merely annoying phone calls, be they commercial in nature, pranks, or from your in-laws (if your in-laws annoy you, of course). The bar is high, as they say, and there has to be intent to cause someone else emotional stress. (Of course, that won't stop lawsuit-happy people from trying, but what does?)
Building on that, we need to put this law into context, and I think that is where things become more clear. Anonymous speech per se is protected by the First Amendment (see McIntyre v. Ohio Election Commission for a recent SCOTUS-level decision), but anonymous speech has also been subjected to legal scrutiny, such that Internet Service Providers and the like have been pressed to reveal the identities of anonymous individuals who have been accused of defamation and other such "speech crimes." This is to say that, even prior to this law, it was possible for a party to serve discovery on an ISP or a forum provider to turn over whatever information they had on a poster for the purposes of pursuing claims.
So, given that "annoy" has a higher bar than its everyday meaning, and given that it was already possible to try and do a hatchet job on someone online posting their opinions, what does this law really add to the situation? Without a doubt, the statute is extremely vague and confusing, and some interpretations would give it a meaning so broad as to be unconstitutional. But that's where the intent qualification comes in: there has to be an appearance that someone is trying to be malicious to achieve a negative end. Could this law be used for abuse? Sure, but then, so are so many laws (the DMCA comes to mind). But I think it's not quite accurate to say that forum posts and blogs are going to come under fire if someone finds them "annoying."
If I could boil my reading down to a few sentences, it would be as follows: the statute makes it illegal to send communications with the intent to "annoy," when those communications are sent anonymously. Previously, it was already illegal to attempt to annoy others with telecommunications services, anonymous or not. Now anonymity is explicitly addressed, but incidental annoyance is still not the same thing as intentional annoyance, which often requires a pattern of abuse to establish (since it is often otherwise very difficult to establish someone's state of mind when engaging in a particular behavior). Yet this has been illegal for some time. In fact, this entire amendment to the statute is only updating a rather old prohibition against malicious telephone usage.
In a phrase: the more things change, the more they stay the same. Why add this language then? That's a good question, and if I had to guess, I would say that this looks like a rather lame attempt to address the burgeoning VoIP world, which will soon include all instant messaging clients supporting making calls to Plain Old Telephone Service (POTS). But this bill does not make anonymity illegal, nor does it make everyday annoyance illegal. However, if you attempt to hide your identity while engaging in a campaign to annoy someone electronically, you could find yourself on the other side of a lawsuit. But this was already possible before this bill was passed.
| SOURCE |
January 11th, 2006
