Annoying someone via the Internet is now a federal crime.
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.
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."
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."
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.
There's an interesting side note. An earlier version
that the House approved
in September had radically different wording. It was reasonable by comparison,
and criminalized only using an "interactive computer service" to cause
someone "substantial emotional harm."
That kind of prohibition might make sense. But why should merely annoying someone
There are perfectly legitimate reasons to set up a Web site or write something
incendiary without telling everyone exactly who you are.
Think about it: A woman fired by a manager who demanded sexual favors wants
to blog about it without divulging her full name. An aspiring pundit hopes to
set up the next Suck.com.
A frustrated citizen wants to send e-mail describing corruption in local government
without worrying about reprisals.
In each of those three cases, someone's probably going to be annoyed. That's
enough to make the action a crime. (The Justice Department won't file charges
in every case, of course, but trusting prosecutorial discretion is hardly reassuring.)
Fein, a San Francisco resident who runs the Annoy.com
site, says a feature permitting visitors to send obnoxious
and profane postcards through e-mail could be imperiled.
"Who decides what's annoying? That's the ultimate question," Fein
said. He added: "If you send an annoying message via the United States
Post Office, do you have to reveal your identity?"
Fein once sued to overturn part of the Communications Decency Act that outlawed
transmitting indecent material "with intent to annoy." But the courts
the law applied only to obscene material, so Annoy.com didn't have to worry.
"I'm certainly not going to close the site down," Fein said on Friday.
"I would fight it on First Amendment grounds."
He's right. Our esteemed politicians can't seem to grasp this simple point,
but the First Amendment protects our right to write something that annoys someone
It even shields our right to do it anonymously. U.S. Supreme Court Justice
Clarence Thomas defended this principle
magnificently in a 1995 case involving an Ohio woman who was punished for
distributing anonymous political pamphlets.
If President Bush truly believed in the principle of limited government (it
is in his official
bio), he'd realize that the law he signed cannot be squared with the Constitution
he swore to uphold.
And then he'd repeat what President Clinton did a decade ago when he felt compelled
to sign a massive telecommunications law. Clinton realized that the section
of the law punishing abortion-related material on the Internet was unconstitutional,
and he directed
the Justice Department not to enforce it.
Bush has the chance to show his respect for what he calls Americans' personal
freedoms. Now we'll see if the president rises to the occasion.
Declan McCullagh is CNET
News.com's Washington, D.C., correspondent. He chronicles the busy intersection
between technology and politics. Before that, he worked for several years as
Washington bureau chief for Wired News. He has also worked as a reporter for
The Netly News, Time magazine and HotWired.