FAQ: The new 'annoy' law explained

Q: Your CNET News.com column on Monday--"Create an e-annoyance, go to jail"--referenced the text of a bill that President Bush signed last week, but I can't find the word "annoy" in it. What gives?
Figuring out exactly what Congress did takes a few minutes. But it's not too difficult.

First, go to the text of the legislation and search for Sec. 113. Note how Sec. 113. amends existing law by changing the definitions in 47 U.S.C. 223(h)(1).

Before the new law took effect last Thursday, 47 U.S.C. 223 explicitly said it "does not include an interactive computer service." The changes override that for the "to annoy" section and now say it applies to the "Internet."

Q: So what does the rewritten law now say?
The section as amended reads like this: "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."

Q: But that section is titled "Obscene or harassing telephone calls." Doesn't that mean only voice over Internet Protocol, or VoIP, is now going to be covered by the law?

That's one interpretation. But that's not how Congress actually wrote the law, however, and precise wording matters.

perspectives
Eye on Washington

Click here to find more columns by Declan McCullagh on the busy intersection between technology and politics.

If politicians wanted to limit the law to VoIP, they could have followed what they did in other bills and actually used the term. They could have also limited the "annoy" requirement to contacting an individual person.

But they didn't. The law instead covers any types of "communications that are transmitted, in whole or in part, by the Internet"--not just VoIP conversations. Also, it covers any person "who receives the communications" rather than a narrower definition that could have been written as "an individual intentionally targeted as the recipient of the communications."

At the very least, Congress has an obligation to clear things up and fix the ambiguities in this law.

Q: Someone has been annoying me on the Internet, and it's getting serious. What can I do?
Keep in mind that the new law has only criminal sanctions, so you can't sue someone directly (unless they're already violating other laws). Also remember that it only applies to a person who is intentionally annoying "without disclosing his identity."

You'd have to contact your local FBI office or U.S. Attorney. But don't be surprised if they place you way down on their priority list.

Q: Some people, including law professor Orin Kerr, say the existence of the First Amendment means we shouldn't worry.
Kerr says that "if speech is protected by the First Amendment, the statute is unconstitutional as applied and the indictment must be dismissed... prosecutors know that they can't bring a prosecution unless doing so would comply with the Supreme Court's First Amendment cases."

That's correct as far as it goes. But it's not the whole story, because it amounts to trusting what lawyers call prosecutorial discretion.

The U.S. Justice Department made the same argument in its unsuccessful defense of the Communications Decency Act. Prosecutors claimed that the CDA was constitutional because the Justice Department would never apply it in an unconstitutional manner.

Judge Dolores Sloviter rejected that argument, writing: "The government makes yet another argument that troubles me. It suggests that the concerns expressed by the plaintiffs and the questions posed by the court reflect an exaggerated supposition of how it would apply the law, and that we should, in effect, trust the Department of Justice to limit the CDA's application in a reasonable fashion that would avoid prosecution for placing on the Internet works of serious literary or artistic merit. That would require a broad trust indeed from a generation of judges not far removed from the attacks on James Joyce's Ulysses as obscene."

Q: If the law does violate the First Amendment, why would Congress enact it?
There's no good answer to that question. When our elected representatives were drafting this law over the last few months, they could have cleared things up.

The law criminalizes certain acts intended to "annoy, abuse, threaten, or harass any person." Deleting the word "annoy" from that lineup would probably have eliminated the free speech problems. But Congress chose not to do so.

An earlier version that the House approved in September had radically different wording. It was reasonable by comparison, and only criminalized using an "interactive computer service" to cause someone "substantial emotional harm." That was changed in the final version.

[robertcampbell2]

There goes Slashdot

I think this is good for Windows. We get rid of the Slashdotters, and 90% of the Linux/Open Source fanatics (90% of a little isn't much but its a start)-:)

[MrNougat]

You're in trouble

I believe that your comments naming Slashdot in particular and Linux/OSS *enthusiasts* in general - especially including the "smiley" emoticon - could be construed as an intended annoyance to the above groups of people. Expect legal action soon.

Now, the only question is, will you be charged once for posting one thing, or will you be charged multiple times, once for each person you have annoyed?

I hope you fry for your flagrant flouting of the laws of our great land. Oh yeah - which country do you live in? No matter, even though you may live outside the United States, many of your innocent victims live inside it. I'm sure there's some anti-terrorism law (or presidential whim) that would allow us to come get you and throw you in a secret prison somewhere.

[M-RES]

I think this is good for Windows too.

I might be able to finally prosecute Microsoft
for making claims about WIndows on it's
website and in the media that annoy me!!! We
get rid of the 'dozers and therefore 90-100% of
the lusers out there. Would make life much
easier not having to deal with those idiots.

[Agatel]

Web sites and blogs do not "originate" communications

If the text of the law does indeed refer to devices that _originate_ communications, then Web sites and blogs are excluded, because servers do not originate communications, they only respond to them. You must visit a Web site or blog in order to see it; it does not magically find its way to your computer and display itself without any action on your part. Therefore it does not _originate_ anything.

[MrNougat]

Very astute!

Excellent observation. I'm hoping that c|net will respond to this point as they have responded to other questions in this FAQ article.

[jmaestro26]

Annoyed at 3rd party Conversations?

Excellent point. I suppose this would be akin to me calling you on a telephone and gossiping about person X, then person X gets annoyed about what I am saying to you and files harrassment. Harrassment claims would not be valid as the communication was between you and a voluntary participant in the conversation; merely getting annoyed at a 3rd party conversation would not fall under this legislation (IMO).

[WDS2]

RSS feeds?

What about stuff like that? Things that are pushed onto your client from the server?

[RoseZone]

Blogs

I agree with you. I have a blog and yes it isn't too nice. It is there and if the people I blog go to it, that is their own doing. It doesn't go directly to them.
Do you think I should just continue to blog or should I just disclose all my information? I like my privacy and my right to free speech.

[the liquid man]

The end of SPAM?

Excellent.

What if someone's email account is hacked and then spam is sent? Is the person at fault?

[mcugaedu]

"With intent to"

Everybody is ignoring the words "with intent to" and the legal principle that criminal law is interpreted narrowly. I don't think this law criminalizes anything that a civilized person would want to do, even when conducting debates or delivering incisive criticism. The word "annoy" is vague, soits interpretation is going to have to be narrow.

But as someone else pointed out, this is probably another weapon against some types of spam.

[chassoto--2008]

Ridiculous!

As a citizen, I am protected by the First Amendment if I
communicate something that annoys you, whether I intended to
annoy you or not. I might write something in my blog (if I did
that sort of thing) that is specifically meant to annoy people with
certain political or social leanings. For example, I could choose
to state my belief that God wanted those miners in WVA to die,
since he didn't listen to all the prayers. I would be making a
point that the "faithful" can't expect divine intervention to only
work in their favor. This sort of statement would definitely know
a lot of fundamentalists, and that is my intent. Because it's on
"the Internet" it's now illegal.

However, it's not unconstitutional. This is why I am perfectly
comfortable speaking my mind online or otherwise. It's also why
I send monthly donations to the local ACLU chapter and the EFF,
among others.

[R Me]

not against spam

This law is intended to be use by politicians as a veil to limit political speech by blogs. There are no corporate or organizational backers of this bill, it is solely a product of twisted political minds. The FEC could not stop political speech on blogs so this is their next logical step in the intent to stiffle free speech.

[mcugaedu]

We've been through this before

This whole debate reminds me of the way some people rose up in fury ten years ago when, as a university administrator, I had to tell them that the existing laws against harassment, etc., applied to their Internet communications. Some people just couldn't believe it.

Guess what, folks? Harassment and threats are already illegal. This new law adds very, very little to the responsibilities that you already had. (See my other comment for a more technical explanation.)

But if you believe the Internet is a fantasyland where anything goes, then I suppose you can also pretend that this law is President Bush's way of personally oppressing you.

I think CNET has misunderstood the law and is spreading needless panic.

[Mister L]

IANAL, Are you?

Unless you are prepared to provide a defensible definition of the word "annoy" as it applies here, and unless you can cite relavent legal education and experience to provide us all with some reason to grant you credibility as regards making sweeping commentary of whether or not this will be apllies narrowly, I am going to take the position that the rights and freedoms of Americans today are less than they were before the era of Bush the Younger, this is yet another step in that direction.

On a positive note, the statute appears, on its face (remember that IANAL), to be a clear violation of the First Ammendment.

[kenny-J]

Enough already......

We're not judges here, and can philosophize all we want, but that's where the intent of the law will be decided. I don't see anyone pointing out that the law specifically targets those that engage in the prohibited behavior "...without disclosing their identity...". Flame, spam, blog all you want as long as your identity is disclosed. Other criminal action may be claimed if it is libel, that's been against the law for decades. How does one figure that violates the First Amendment? Doesn't say you can't express yourself, just you can't do it anonomously, which is as it should be. Can be a tool against spam, and what about DOS attacks? As far as I know, no individual computer user has been the target of a DOS, but is it not possible. That would annoy the devil out of me. Grow up folks, the Constitution and Amendments were not meant to protect barbaric actions.

anonomous speech is essential

Consder thomas paine's "common sense" book was under a pen name as was much of the federalist papers and anti-federlist papers. book and papers critical of the crown were done under pen names because of very real retribution. This isn't about Cyber stalking or VoIP. It is about control government control over our lives. Think for a moment about the regualtions to enforce this law. OS makers and Hardware providers will be required perhaps to have bio metric readers to verify identity. any one can always lie when filling out the registration. Given the courts rulling with Kelo, mcain fiengold and other laws, I don't think they will strike this law down either. In case you haven't noticed America is a full blown police state. Bush him self called the constitution just a G** D*** piece of paper. Apperently the rest of congress thinks even less of it. GEt people asking the wrong questions and the answers really don't matter much at all

[dnotarnicola]

Enough of the Neo-Con aplologists already...

Neville Jantz said: "How does one figure that violates the First Amendment? Doesn't say you can't express yourself, just you can't do it anonomously, which is as it should be."

Wrong! A Supreme court ruling specifically protects anonymous free speech. Existing laws regarding libel and slander still apply. It is the burden of the person aubjected to the libel/slander to acertain the indentity the perpetrator, and THAT is as it should be.

You want to talk about "Enough already...?" How about enough already with the insane attitude of "if you're not doing anything wrong, you have nothing to worry about." This attitude invites abuse of authority. It is already happening. We are losing our personal freedoms.

I agree with a previous post that said the sole purpose of this law is to stifle political speech. God forbid you dis Emperor Dubya.

[Sboston]

Excuse me,

Can I have my country back? You know, the land of the free and the hone of the brave?
It appears that it is getting less and less every day.

[mcugaedu]

Excuse you?

Exactly how much of precious freedom was taken away here? We've had libel laws for over 200 years.

[Jesica Alba]

Can I have my country back

http://www.analogstereo.com/isuzu_amigo_owners_manual.htm

[garyn1]

ROFL

Quite frankly, if you weren't prone to being a complete a** and stalking people, you wouldn't even need to bother 'clarifying' what the law does, or does not say.

[Mister L]

Gary, here's a thought...

(Note that the below is for illustrative purposes only, without intent to personalize this debate in any way or to annoy...also please note the use of my name, and not a nom de plume)

Let us say that I had read your post on a bulletin board where handles are used routinely instead of names...and I chose to respond to it by saying:

(Example)
"Listen here you pompous ass, it is clear to me that you come from the same school of thought that openly welcomes the invasion of our homes by law enforcement officials under the "If you have nothing to hide, why can't they come in whenever they please?" arguement. This makes it obvious to me that you don't give a rat's a@@ about anyone's liberties but your own, and you are blind as a bat if you can't see the erosion of constitutional liberties happening right before your eyes. Take your facist trash elsewhere!"
(END example)

NOW, under this law, and assuming the fictitious "you" is mightily annoyed by my characterization of said fictitious "you"'s of a narrow minded neocon with no regard to the essential liberties that encourage free thought, and that I posted the above example under a screen name/handle, I am now guilty of breaking the law...

Yeah...when hell freezes over. Thank the framers for the first ammendment.

[n3td3v]

Does CNET need to pollute readers?

We don't need two articles covering the same subject, or are you just making up for the original article not being clear enough? Maybe you should ask yourself some questions about annoying your own readers.

[Mister L]

n3td3v

Don't speak for me by using that "we" please...I find it annoying, and as you are using a pseudonym you are in violation of the new law.

[logic_ration]

Precedent?

47 U.S.C. 223 has been on the books for some time, isn't this the Communications Act of 1934 original language? I'm having trouble finding a Fed. case where "intent to annoy" came under interpretation. I would assume in over 70 years the question would have come up. Anybody have a source for me?

[MU_Riboflavin]

My point

That's what I've been saying this whole time.

The issue is with the language of the amendment, not the original text. What we need is a clearer definition of what a 'received communication' is when pertaining to the internet. If you were to say it's only e-mail, then this whole issue is moot.

[lurkswithin]

maybe a deeper degree

I myself am deeply concerned that for all intents and purposes this annoyance law is purposely vague to give a broader sense of the use of the law than what is there.

The "arresting" of US currency is done because the money is suspect of being illgotten gains. But by arresting the money there is no bail or constitutional issues because the monies are non-intities.
In an act...could a broader sense of this law be taken to the same terms....in as much as "xxxbloggerxx' is not an individual as he has no birth record...no social security number...no drivers license..etc.etc. In this scenario then this "name" annoyed a law enforcement agent and violated the law and thus could be arrested and have search warrants issued and property confiscated all under this pretense of not being a legal entity.

Would it not then be the responsibility of the real person to now have to step forward and admit to what ever and all to get his/her personal property back....in the mean time the government would have access to all that was on that computer as it was confiscated...

This seems to me to be some more instances of the Homeland Security act than an annoyance law.

Why else would they not correct the wording to not be in such a conflict with Constitutional Issues.

they are knocking at my door as I write this...I hope it gets posted long enough to be read...
LMAO
lurkswithin

[ajbright]

The first time this law is misused

provided the defendant has the tenacity and financial resources to defend themselves, probably through several levels of the court system and over the course of several years, then this law will eventually be found unconstitutional as it's presently written.

The basis that we should trust prosecutors "because they wouldn't do that" is one of the most inane arguments a politician could give.

Clearly there is a political motivation behind this law, possibly a concealed attempt to restrict free speech, and there have been too many instances in the recent past where promises "that we would never do that" have been massively broken.

The bottom line is that "freedom of speech" means the government is not allowed to control what we say, as long as we don't incite illegal behaviour such as violence or do the "shout fire in a theater" thing.

This law is clearly in violation of that, and a determined defendant ought to be able to use the freedom of speech argument as a successful defense.

[ProudPrimate]

Annoyances Anonymous

I seem to remember there were a bunch of guys in New York a few years back that all signed their posts "Publius", making a lot of inflammatory statements in favor of confirmation of the Constitution -- 1780's, wasn't it?

[Jesica Alba]

inflammatory statements

http://www.analogstereo.com/infiniti_j30_owners_manual.htm

[jmaestro26]

What about annoying someone in person anonymously?

I suppose this is the next phase: you must introduce yourself before annoying someone in person. Would this requirement be a violation of the constitution? Definitely, therefore applying these requirements to a telecommunication device would be unconstitutional.

I'm not concerned what people may think of me by revealing my identity as much as I am of identity theft, and my personal information being abused.

[Seaspray0]

Too ambigous to hold up

If you were to apply what the law says, it not only would apply to blogs, but to online news, and possibly television (if you have a satelite dish, you are receiving it in a digital format). Do you really think news sources would allow this violation of their free speech. The law should have been more specific on how a person is receiving the information that is considered an annoyance. Communications that are directed to objects that are the sole receiving point for an entity such as an email box should receive consideration under this law, but those entities that require the receiver to "actively aquire" annoying content not directly targeted to them (i.e. blogs, news sites, websites, chat groups that are open to the public and outside of a person or group's personal designated receiving point) should not. In this case, the user or group would have to go beyond their private sources into the public domain to aquire such annoyances. Once in the public domain, we already have laws in place to cover slander and defamation of character as well as the right of free speech. I doubt the likes of our major new sources will stand idlely by as they print thousands of articles to the public about individuals in society and they do have the right to protect their sources of information (meaning they would be anonymous to the recipent). Comedians such as Jay Leno also have the right to break the truth, make outrageous claims, and broadcast it to millions all in the name of comedy. I'd like to see the recipient of these jokes try to to apply this law. Also, given the government's lack of enforcement to even go after hackers sending their zombie PC's on DDOS attacks, do you really think you have much to worry about because you've "flamed" someone in a chat room? I'm not going to lose any sleep over this law.

[Seaspray0]

What is anonymous

If I am in a chat room and I flame another chatter, I am truely unknown to that person... but so is the recipient to me. I can claim I did not intentionally intend to annoy, harass, etc any specific person since I do not know their true identity. In an environment such as this, the conditions of identity have long been established: Your identity is the handle you use. To use this handle, I would have to register it under an account with the host provider of the chat room, so under these conditions, I could argue that I am not truely anonymous. I am identified by an acceptable manner considered normal for the medium I am communicating in: My handle. My true identity is unknown, but I am not anonymous. This arguement could apply to all forems where handles are accepted.

[Darkada]

Message has been deleted.

[val31]

what is the difference?

i am still going to go with my comment to the original story that this law is a total waste of time, money, and energy......

[Sentinel]

The Annoyance Law

This is great, this is just great. This is the greatest law ever invented. I have a few friends who annoy me on my instant messenger. I'm going to have them incarcerated and fined. That'll teach 'em. I know who they are, so it's not a problem.

It doesn't matter that the law is unconstitutional, after all, the First Ammendment seems to have been... ammended. It probably now reads: "You can exercise freedom of speech as long as you don't violate any of the laws below..."

Exactly what is anonymous? Nobody is really anomymous on the Internet. Even if you don't use your real name, you can still be tracked by your IP address and your identity can be found by means of you ISP. Basically this means that everyone can say whatever they want on the Internet, and, because they are not really anonymous, they can't be sued. Does the law explain what "anonymous" means?

By the way, I find Yahoo's ads quite annoying. Sometimes they even cover my "Inbox" Link. I think I'm going to sue them too. That'll be a good waste of taxpayer dollars and court resources. After all, courts no longer seem to have real cases, with real criminals, to deal with.

[Jesica Alba]

exercise freedom

http://www.analogstereo.com/kia_sportage_owners_manual.htm

[Johnny Kneegrow]

Message has been deleted.

[Nursevic]

It LOOKS like the analysis is wrong!

Okay, I am not a lawyer, I don't play one on TV, and I get a headache whenever I try to read stuff like this. But...

You state in the answer to the first question:

"""Before the new law took effect last Thursday, 47 U.S.C. 223 explicitly said it "does not include an interactive computer service." The changes override that for the "to annoy" section and now say it applies to the "Internet.""""

After reading the law and the changes, it seems to my "non-lawyer" mind, that this NOT what it says.


The new legislation says in Sec. 113:
----------------------------
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.
=============================


Now, Paragraph (1) of section 223(h) of the Communications Act of 1934 (47 U.S.C. 223(h)(1)) as it read BEFORE it was changed by this new legislation, said:
----------------------------
(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; and
(B) does not include an interactive computer service.
=============================


After the new legislation's changes are applied, the section reads:
----------------------------
(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)).
[[http://Bracketing the word 'and' with **_ _** was done by me for emphasis.]|http://Bracketing the word 'and' with **_ _** was done by me for emphasis.]]
=============================


The "does not include an interactive computer service" does NOT appear to be overridden by the changes, but specifically INCLUDED through the use of the word **_and_**. If the legislation had used the word **_or_** or **_except_**, then saying that the "does not include an interactive computer service" is excluded might make sense.

Additionally, in the new legislation, note that it says:
----------------------------
(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.
=============================
That also seems to reinforce the inclusion of "does not include an interactive computer service". If this is true, the law can now be read as:
"""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, and is not an interactive computer service... 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."""

I don't know. Maybe in the legal world, the word **_and_** really means **_or_** or **_except_**.

So, can you (or someone) explain WHY the word **_and_** in the context of this legislation doesn't really mean AND, but really means **_or_** or **_except_**?

If that cannot be adequately explained, then the entire analysis is flawed, because it is based upon a flawed premise.

Nursevic

(P.S. If anyone would like to see the original law with the new changes applied and color-coded to see what was changed, here is a page that shows it:
http://people.delphiforums.com/Nursevic/eannoy/eannoy2.html )