January 9, 2006 4:00 AM PST

Perspective: Create an e-annoyance, go to jail

See all Perspectives
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 be illegal?

There are perfectly legitimate reasons to set up a Web site or write something incendiary without telling everyone exactly who you are.

A law meant to annoy?
FAQ: The new 'annoy' law explained
A practical guide to the new federal law that aims to outlaw certain types of annoying Web sites and e-mail.

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.)

Clinton 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 ruled 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 else.

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.

Biography
Declan McCullagh is CNET News.com's chief political correspondent. He spent more than a decade in Washington, D.C., chronicling the busy intersection between technology and politics. Previously, he was the Washington bureau chief for Wired News, and a reporter for Time.com, Time magazine and HotWired. McCullagh has taught journalism at American University and been an adjunct professor at Case Western University.

More Perspectives

393 comments

Join the conversation!
Add your comment
Articles wrong presumption....
The article starts with the presumption that GWB gives a damn about personal freedoms or the constitutional rights therein. The Patriot Act is a HUGE contitutional avoidance device, the prisons, torture and circumventing of the Geneva Convention. The 'appointing' of parties when congress is at break without thier input. This is just another tool to harrass/sue your opponents into submission if you are lucky enough to be rich..
Posted by Vetter83 (50 comments )
Reply Link Flag
What baloney
So if Person A on AOL sets up a nickname, for example, "SoccerRef", and then says something that person B doesn't like, he is guilty of a federal offense? Ah yes, the well known conservative penchant for small government and getting the government out of your lives. This is baloney and conservatives don't have a clue about what the important issues are.
Posted by dj_paige (1 comment )
Reply Link Flag
The law is necessary because
How else is a President going to rule the world if he don't have laws such as this one on the books?
Posted by casper2004 (267 comments )
Reply Link Flag
Suprise suprise
Another story... another (lame) attempt to slam Republicans and the administration. Those tricky republicans forcing all of those upstanding democrats to vote for a bill that will crush our civil liberties!
Posted by ebrandel (102 comments )
Reply Link Flag
I can't find it
Where in the bill does it say this? I'm searching the final text online on the Library of Congress Thomas database, and I'm looking at Section 113, but I can't find the language quoted in the article anywhere. I suspect the article is in error.
Posted by jgmilles (2 comments )
Reply Link Flag
I'm annoyed!
Mr. McCullagh, is that your real name? I only ask because your article really annoyed me. Was that your intention?
Posted by alphtoo (16 comments )
Reply Link Flag
Sounds reminiscent of a GA state law fiasco
Georgia passed a state law in the mid-90s requiring your email address to contain your real name. Most folks didn't even know it was on the books, until it was finally struck down with some fanfare about two years later.
Posted by C.Schroeder (126 comments )
Reply Link Flag
alright
ok so im glad you found it but could you post the link so everyone can read the full text?
Posted by libertaspraesidium (2 comments )
Reply Link Flag
Al Qaeda isn't only 'sack over head'
Much annoyance can be avoided by just insisting on real identities. When a person in FL mis-interpreted a general news posting of mine, she went over the edge trying to retaliate. Only a local telephone call to her house-trailer in a park stopped the harassment. Many people act unsocial in the cover of darkness.
Posted by gthurman (67 comments )
Reply Link Flag
Dear George W. Bush,
You smell like bologna and have a hyena head.

Regards,
Anonymous
Posted by Bob_Barker (167 comments )
Reply Link Flag
who's annoying WHO????
First of all, ...news like THAT, is annoying to me. (Does this mean that the article is in violation of the new law)?

Secondly, there are WAY to many people with WAY too much free time on their hands, doing such jerky things as passing assinine legislation like this. (Did I annoy someone by saying that)?.....(TOO BAD)!!

Thirdly, While not everything that is: spoken, printed, typed & posted, or broadcast, may be: polite, politically correct, in good taste, etc;
we are still guaranteed FREEDOM of SPEECH & EXPRESSION, whether such words "annoy" someone or not. There are TOO many OVERLY sensitive people out there, getting all bent out of shape over TOO MANY TRIVIAL things, these days,.....GET A LIFE!!

On top of it all, whether our right to free speech and expression is sanctioned by the U.S. Constitution or NOT,.....speech, thought & expression are inherent HUMAN abilities, and it is only a smug, ARROGANT Government (or a tyrannical one) that would dare believe they could legislate these human processes.

This law is one example of how some lawmakers (and the chief law-signer himself) have their collective heads irreversibly stuck up in a place where the sun never shines and where they love to hear the echo of their own voices.

Lastly,....I must have annoyed SOMEONE, with what I have said, but I don't give a rat's a$$, and I must have violated this new law, because in addition to possibly annoying someone, I am also doing it anonomously!
Posted by glooface (2 comments )
Reply Link Flag
Imprisoning Dissidents...
Now all Bush has to say is that our blog entries, etc...'annoy' him, and we're subject to imprisonment. His wish come true!

<a href="http://badbadpoet.blogspot.com/">cat</a>
Posted by catnapping (2 comments )
Reply Link Flag
There is a differents between annoying a harassment
There is a differents between annoying a harassment. It fact any thing you say that someone may not like can be annoying the them. We have a right to free speech and not to remain anonymous. Don't we? Our are freedoms limitting little by little every day. In some country if you talk bad about their goverment you can go to jail. What is next for are goverment and US. Besides being live to be anonymous so that they can free a little save that no one may come after them. What do you think. On last note maybe this law may not cover small things just large ones. We have to wait and see.
Posted by pjoshua5000 (110 comments )
Reply Link Flag
misprint in comment.
"annoying a harassment" is to read "annoying and harassment" sorry!
Posted by pjoshua5000 (110 comments )
Reply Link Flag
Do you suppose? Think again.
The presupposition this article makes is disturbing, but it seems its just a less dubious matter of the letter of law not accurately corresponding to the spirit of it. Since the third sentence specifies this law is part of the Violence Against Women and Department of Justice Reauthorization Act it seems obvious that this type of prohibited use of the internet only applies when its being used to harass victims of violence against women. (The second definition of 'annoy' on dictionary.com is 'To harass...'.) Certainly a meritless claim by someone who was just 'slightly irritated' (the other basic definition of the word 'annoy') by a web post somewhere would not make it very far in the court system.

The article references a good example of this scope of reference when the owner of the site Annoy.com felt his site would be impacted by the Communications Decency Act, but the courts ruled that this only applied to obscene material, not that which he was delivering. Scope of reference from the letter of the law to the spirit of the law established.

Using common sense to interpret slight ambiguities wouldn't leave much for pundits and lawyers to do, though, would it? Makes for a good read though, especially when its never been hipper to be anti-establishment.
Posted by whogivesa (1 comment )
Reply Link Flag
hmmm...
This new law annoys me bigtime!
Posted by adamsnoddon (1 comment )
Reply Link Flag
Annoy this...
One of my co-bloggers just created a new account at our group blog (<a class="jive-link-external" href="http://hammeroftruth.com" target="_newWindow">http://hammeroftruth.com</a> ) to cover the story just to ensure that "Anonymous" was the person covering this story and ensuring that there would be an annoyance factor contained therein.

BTW, good job on breaking the stroy, Declan.
Posted by Stephen Gordon (5 comments )
Reply Link Flag
Define "identity"
What exactly is "disclosing (an) identity"?

It could be argued an IP address is an identity.

It could be argued an account name or email address is an "identity".

So the only persons likely to be affected by this law would be the cowards who cyber stalk from behind anonymous remailers. Anonymous remailers remove the identity of the original sender and then retransmit the message to the destination defined by the sender. Therefore the send of the message has no "identity", as the point of origin can't be traced. The remailer administrators themselves don't have any way of knowing where the message came from or any way to trace or block such messages.

If the intent of this law is to make abuse of anonymous remailers illegal, than it's a step in the right direction.

However if the real intent of the law is to insist every person place their name upon every message they send out to the internet, it's clearly a violation of the First Amendment rights for anonymous speech.

People have a right to privacy just as much as they have a right not to be harrassed.

If someone is "annoyed" enough and have legitimate grounds to be annoyed, that person can file a subpoena to the NSP or ISP or email provider.

There are a lot of kooks out on Usenet and on the intenet in general. LE should not be obliged under this law to be annoyed with frivolous complaints by kooks who feel "annoyed" because someone referred to a kook who would file a frivolous complaint like this, as a kook.

Are LE prepared for the flood of complaints about people who may have differing opinions which may be considered "annoying"?

This is a poorly written law.
Posted by flushthrice (1 comment )
Reply Link Flag
I'm sorry
But laying this on Bush's feet is insane. It's something that was stuck into a bill that had to pass. Do you think anyone in their right mind would veto something called the Violence Against Women Act? Not to mention the Department of Justice aspect of it. Honestly, the second this thing is challenged, it's going to get tossed out as unconstitutional.
Posted by hmhill17 (1 comment )
Reply Link Flag
This country is becoming more and more like Nazi Germany everyday...
Sieg Heil Bush.
Posted by GPayne (1 comment )
Reply Link Flag
OMG!
What the hell!
Bush is such an IDIOT, wasting tax money on WORTHLESS bills!
Since when is being annoying a CRIME?!
Two years for being a pest is almost as dumb as marijuanna crimes carrying equal penalities as violent offenders, oh wait that real too!!!
Dude, I've had it, thats it...Im moving to Canada.
Posted by SkotSnot (1 comment )
Reply Link Flag
Annoyance?
What the heck am I going to do now? almost everyone finds me annoying... I guess all I can do is sit and wait for the annoyance police to show up...and how to defend against such a charge? I didnt intend to be annoying? How do you prove that sort of thing? from either side?
Posted by demodred (1 comment )
Reply Link Flag
You ar emisleading people...
The act as I read it does not introduce the word "annoy" into law, it takes an existing statute that is intended to prevent individuals from harassing others over the telephone and other devices, and the bill as signed by the president simply clearly adds internet devices to the existing law.

Should a stalker be permitted to violate someone becuse they choose to use email instead of the telephone? Where do VoIP phones fall under the previous law?

Let's try the "Dukakis Test" - if your wife/husband or child were being stalked via email, IM, etc., should the person committing the offense be free to continue becuse they didn't use the phone?

Before you "blame" the president for this (or any other law passed by the House and Senate), remember the majority of our representaives approved this, making it, by definition, the will of the people.
Posted by n2vip (2 comments )
Reply Link Flag
e-nnoyance
I'm sorry, but your constant complaining about your rights while we remove them is interfering with our ability to govern. Surely you can understand our need to control the venues relating to the freedom of speech. What are you? Anti-American.
Posted by aqvanavt (17 comments )
Reply Link Flag
Misrepresenting law, or Nice use of ellipses
The quote pieces together parts of three different sections.
The real law states that you cannot annoy, abuse, threaten, or harass

via a phone call without revealing your identity if you intiated the phone call

via a telecommunications device using obscene, lewd, lascivious, filthy, or indecent communication if you initiated the communication

via a telecommunications device using obscene or indescent communication while knowing the recipient is under 18 years of age regardless of who initiated the communication

The text is here:
<a class="jive-link-external" href="http://64.233.167.104/search?q=cache:eTgHNQ2YpkMJ:www.fcc.gov/Reports/1934new.pdf+%22Communications+Act+of+1934%22&#38;hl=en&#38;client=firefox-a" target="_newWindow">http://64.233.167.104/search?q=cache:eTgHNQ2YpkMJ:www.fcc.gov/Reports/1934new.pdf+%22Communications+Act+of+1934%22&#38;hl=en&#38;client=firefox-a</a>
on page 54
Posted by marigolds (4 comments )
Reply Link Flag
 

Join the conversation

Add your comment

The posting of advertisements, profanity, or personal attacks is prohibited. Click here to review our Terms of Use.

What's Hot

Discussions

Shared

RSS Feeds

Add headlines from CNET News to your homepage or feedreader.