Flame someone anonymously, go to jail? No, say BB-reading lawyers

Declan McCullagh writes:
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."

Link to News.com story (Thanks, Deep Fried Geekboy and many others)

Reader comment: Stephen VanDyke says,

I thought you might like to know that one of our editors, under the pseudonym of "Anonymous," has fired a shot back at Bush and Congress by publicly insulting, possibly annoying (perhaps tamely, though now illegally). We are also a Google News source, so we have are already getting some notice from this. Link
Reader comment: Nameless Troll says, to no one in particular, but actionably nonetheless,
Fuck you! I hate you! Nyahaaaahhh!
Reader comment: Another anonymous reader says the CNET News.com story misinterprets existing law and the text of the new bill -- IOW, trolls remain free to troll:
Uh, try again. Maybe you guys should read the text of the bill... this is a wildly inaccurate interpretation of the bill, in which the word "annoy" appears not once. The word "annoy" appears in *existing* legislation (Communications Act of 1934) and it does not include any communication a recipient might find annoying. Furthermore, the identity provision is not specified in the amendment discussed. Your article is, indeed, a joke.
Link

Reader comment: A government lawyer intimately familiar with the subject who requests anonymity (but whose identity is legit, and known to Boing Boing) sez,

Your latest reader comment has it exactly right. The anonymous harassment provision ( Link ) is the old telephone-annoyance statute that has been on the books for decades. It was updated in the widely (and in many respects deservedly) ridiculed Communications Decency Act to include new technologies, and the cases make clear its applicability to Internet communications. See, e.g., ACLU v. Reno, 929 F. Supp. 824, 829 n.5 (E.D. Pa. 1996) (text here), aff'd, 521 U.S. 824 (1997). Unlike the indecency provisions of the CDA, this scope update was not invalidated in the courts and remains fully effective.

In other words, the latest amendment, which supposedly adds Internet communications devices to the scope of the law, is meaningless surplusage.

Reader comment: David T.S. Fraser at The Canadian Privacy Law Blog says,
I've added a marked up version of the Communications Act as it looks following the amendments on my blog (Link.) It may help out the confusion over how HR 3402 actually works.
Reader comment: Author and attorney Daniel Solove says,
In a comment to my co-blogger's post, I point out problems with Declan's article. I write: Declan's article is misleading. The provision extends a telephone harassment law to apply to email. Declan describes the provision as applying whenever a person "annoys" another: "A new federal law states that when you annoy someone on the Internet, you must disclose your identity."

But that's not what the law says. Instead it provides: "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."

Note that "annoy" is part of the intent element of the statute -- it requires the intent to annoy, abuse, threaten or harass. Far from an anti-anonymity provision that applies whenever a person annoys another, it is merely a prohibition on harassment.

Declan writes: "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." I don't see any basis for the law to apply in this instance.

Link

Reader comment: Steven D'Aprano says,

I'd just like to question attorney Daniel Solove's comments. Unless there are some special meanings to the word "and" that exists in law but not common English, I don't think he has got it right.

Daniel points out that the new law states:

"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."

The law does not explicitly state that if you disclose your identity you can harass with impunity, but what it does say is that there are three necessary conditions for the offense: there must communication in whole or part over the Internet, there must be no disclosure of identity, and there must be intent to annoy (or abuse, threaten or harass).

Now, asking how prosecutors, judges and juries will interpret that law is a complex question, but it seems obvious to me that anonymity is absolutely and clearly a necessary (but not sufficient) condition for there to be an offense under this law.

Frankly, I think this new law is business is usual. There is no shortage of laws that are extremely wide and over-broad, but don't get enforced -- unless, of course, you are unconventional, weird, different, rub somebody the wrong way, or come to the attention of somebody in power with an axe to grind or a quota to fill. In other words, just another bad law created with the best of intentions which can be abused by bad people.

Solove says, "I have further comments and a response to the BoingBoing reader critiquing my views here."