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lederhosenThere's an editorial by Declan McCullagh doing the rounds at the moment, concerning a new law about cyberstalking. It's getting a lot of circulation because it outrages people and, like many things that get their circulation that way, the writer's effort to milk that outrage makes it grossly misleading.
Select passages from McCullagh's piece, emphasis mine:
And from the summary box:
'slipped it into an unrelated, must-pass bill'
It took me all of two minutes hunting to find six versions of the new bill.
The relevant portion is section 509 in earlier versions, 113 in later ones. It's part of Subtitle K: "Privacy Protections for Victims of Domestic Violence, Dating Violence, Sexual Violence, and Stalking". This is a longish section dealing with exactly what the name says. By my reading of it, about the first two-thirds of Subtitle K deals with things like funding for anti-violence/stalking programs, organisation and accountability of those programs, etc etc.
It then goes on to Section 113 (the one we're interested in, and I'll get back to that), Section 114 (a law against physical stalking), Section 115 (concerning repeat-offender stalkers), Section 116 (concerning dating violence), Section 117 (expanding certain anti-violence laws to include special maritime/territorial jurisdictions of the US), and Section 118 (updating definitions of protection orders).
Is Sec. 113 concerned with funding? No, and neither are the five subsequent sections. But they are all concerned with "victims of domestic violence, dating violence, sexual violence, and stalking". To describe this as 'slipped into an unrelated bill' is grossly dishonest.
It rewrites existing telephone harassment law to prohibit anyone from using the Internet "without disclosing his identity and with intent to annoy."
Now, let's look at what the final version of Sec. 113 actually says:
SEC. 113. PREVENTING CYBERSTALKING.
(a) In General- Paragraph (1) of section 223(h) of the Communications Act of 1934 (47 U.S.C. 223(h)(1)) is amended--
(1) in subparagraph (A), by striking `and' at the end;
(2) in subparagraph (B), by striking the period at the end and inserting `; and'; and
(3) by adding at the end the following new subparagraph:
`(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)).'.
(b) Rule of Construction- This section and the amendment made by this section may not be construed to affect the meaning given the term `telecommunications device' in section 223(h)(1) of the Communications Act of 1934, as in effect before the date of the enactment of this section.
If you read that carefully, you may have noticed something, and I'll save you the trouble of checking through it again: no, the word 'annoy' does not appear anywhere in that section. For that matter, it does not appear anywhere in any of the six available versions of Subtitle K. (While McCullagh doesn't actually say that 'annoy' is in the new law, he certainly does his damnedest to imply it - isn't that the impression you got from reading his editorial?)
So, where does the word 'annoy' come from? From the pre-existing law!
There are two relevant parts of that law. 223(a)(1)(C) makes it a crime for "[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". 223(h)(1) defines what a 'telecommunications device' is for the purposes of that and other offences.
So, by my reading, the intent of Sec. 113 is to say: "If you use voice-over-IP methods to make obnoxious anonymous calls, that's the same sort of illegal as if you used a regular telephone". That seems like a pretty reasonable objective to me.
Whether this law *could* be used beyond its scope, I don't know (there's some discussion on that topic here and on links from that page). But representing this as an act of subterfuge on Specter's part seems quite unjustified - it seems entirely reasonable to believe that it was intended just as a way to close a loophole regarding phone harassment. And if it's the 'annoy' angle that offends McCullagh, he should've been railing against the pre-existing law (which dates back to 1934, according to commentary I've seen elsewhere) rather than pretending that it's part of the new one.
Note also that the law requires not just 'annoyance' (are legal definitions of 'annoy' the same as everyday ones? I'm not sure they are), but the intent to annoy, which would rather seem to weaken Marv Johnson's objections.
Select passages from McCullagh's piece, emphasis mine:
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... 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.
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."
And from the summary box:
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."
'slipped it into an unrelated, must-pass bill'
It took me all of two minutes hunting to find six versions of the new bill.
The relevant portion is section 509 in earlier versions, 113 in later ones. It's part of Subtitle K: "Privacy Protections for Victims of Domestic Violence, Dating Violence, Sexual Violence, and Stalking". This is a longish section dealing with exactly what the name says. By my reading of it, about the first two-thirds of Subtitle K deals with things like funding for anti-violence/stalking programs, organisation and accountability of those programs, etc etc.
It then goes on to Section 113 (the one we're interested in, and I'll get back to that), Section 114 (a law against physical stalking), Section 115 (concerning repeat-offender stalkers), Section 116 (concerning dating violence), Section 117 (expanding certain anti-violence laws to include special maritime/territorial jurisdictions of the US), and Section 118 (updating definitions of protection orders).
Is Sec. 113 concerned with funding? No, and neither are the five subsequent sections. But they are all concerned with "victims of domestic violence, dating violence, sexual violence, and stalking". To describe this as 'slipped into an unrelated bill' is grossly dishonest.
It rewrites existing telephone harassment law to prohibit anyone from using the Internet "without disclosing his identity and with intent to annoy."
Now, let's look at what the final version of Sec. 113 actually says:
SEC. 113. PREVENTING CYBERSTALKING.
(a) In General- Paragraph (1) of section 223(h) of the Communications Act of 1934 (47 U.S.C. 223(h)(1)) is amended--
(1) in subparagraph (A), by striking `and' at the end;
(2) in subparagraph (B), by striking the period at the end and inserting `; and'; and
(3) by adding at the end the following new subparagraph:
`(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)).'.
(b) Rule of Construction- This section and the amendment made by this section may not be construed to affect the meaning given the term `telecommunications device' in section 223(h)(1) of the Communications Act of 1934, as in effect before the date of the enactment of this section.
If you read that carefully, you may have noticed something, and I'll save you the trouble of checking through it again: no, the word 'annoy' does not appear anywhere in that section. For that matter, it does not appear anywhere in any of the six available versions of Subtitle K. (While McCullagh doesn't actually say that 'annoy' is in the new law, he certainly does his damnedest to imply it - isn't that the impression you got from reading his editorial?)
So, where does the word 'annoy' come from? From the pre-existing law!
There are two relevant parts of that law. 223(a)(1)(C) makes it a crime for "[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". 223(h)(1) defines what a 'telecommunications device' is for the purposes of that and other offences.
So, by my reading, the intent of Sec. 113 is to say: "If you use voice-over-IP methods to make obnoxious anonymous calls, that's the same sort of illegal as if you used a regular telephone". That seems like a pretty reasonable objective to me.
Whether this law *could* be used beyond its scope, I don't know (there's some discussion on that topic here and on links from that page). But representing this as an act of subterfuge on Specter's part seems quite unjustified - it seems entirely reasonable to believe that it was intended just as a way to close a loophole regarding phone harassment. And if it's the 'annoy' angle that offends McCullagh, he should've been railing against the pre-existing law (which dates back to 1934, according to commentary I've seen elsewhere) rather than pretending that it's part of the new one.
Note also that the law requires not just 'annoyance' (are legal definitions of 'annoy' the same as everyday ones? I'm not sure they are), but the intent to annoy, which would rather seem to weaken Marv Johnson's objections.
