Does New Cyberstalking Law Criminalize Free Expression?

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Fiery debate
surrounds Section 113 of the Violence
Against Women Act
– a last minute addition to the act titled
Preventing Cyberstalking.

Is the new
‘evil’ or merely redundant? Will it destroy Internet communications
as we know them or have no effect? Do members of Congress actually
read the measures upon which they vote?

Section 113
was signed
into law
by President Bush on January 5. It amends 47
U.S.C. 223
, the telecommunications harassment statute that is
rooted in the Communications Act of 1934.

The telecommunications
statute prohibits anyone from using a telephone or a telecommunications
device “without disclosing his identity and with intent to annoy,
abuse, threaten, or harass any person.”

In application
this has meant that you cannot anonymously annoy another person
through the phone lines. Penalties include two years in prison and
onerous fines.

Section 113
amends the statute to include “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.”

Click here
to see the specific additions to and deletions.

On January
9, electronic-freedom guru Declan McCullagh published an article
entitled “Create
an e-annoyance, go to jail.”
Almost instant furor ensued.

McCullagh opened
by declaring, “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.”

McCullagh and
those who agree with his interpretation of Section 113 represent
‘the law is evil and will damage the Internet’ side of the debate.
Their warnings
revolve around the two “A”s: “annoyance” and “anonymous.”

First Amendment
scholar Eugene
argues that Section 113, if consistently applied, will
criminalize annoying Web speech that is also meant to inform. For
example, the anonymous creator of a blog that criticizes a politician
may sincerely wish the target to become uncomfortable enough with
public backlash to change his or her behavior. If the site engages
in damaging lies, then existing libel laws apply.

Otherwise the
right to state opinions under a pen name has been generally recognized
by the First Amendment, with certain exceptions such as threats.

The parallel
of a ‘pen name’ is significant because Section 113 does not merely
extend traditional protections from an old technology (phones) to
a new one (the Internet). The Web is more like publishing than telecommunication.
Phone calls are considered one-on-one communications and so, as
Volokh comments, they are “rarely of very much First Amendment value.”

By contrast,
the Internet is public speech. This fact alone makes Section 113
different in kind from 47 U.S.C. 223 and not merely an extension
of the same principle.

Moreover, “annoyance”
and “intent to annoy” are unconstitutionally vague terms. By contrast,
harassment seems well defined: stalking, impersonating someone,
threats, sending viruses through email, libel, contacting a target’s
family and co-workers. Critics of Section 113 are “not” defending
a “right” to harass but the right to be publicly annoying, which
is no more than freedom of speech.

As someone
who runs electronic bulletin boards, I’ve seen both harassment and
annoyance in practice. Annoyance is when a churlish poster uses
a screen name to flame another member because of a comment on Iraq
or abortion. Harassment is what recently led to my closing a bulletin
board; a member’s real name was “outed” and his “real life” was
shadowed by threats.

As it stands,
Section 113 makes no distinction between childish and menacing behavior.

those who argue against McCullagh do not necessarily argue for Section
113. Rather, they point to the irrelevance of the “annoyance” reference.
Former Justice Department prosecutor Orin
states that the statute and VAWA amendment can only be
used to prohibit speech that is not protected by the First Amendment.
In short, free speech protections still apply to the Internet.

, associate professor at the George Washington University
Law School, maintains that an anti-anonymity provision will apply
only in cases when the annoyance is part of harassment.

Others argue
that Section 113 will not be applied outside of the context of its
title: “Preventing Cyberstalking.” But those who remember how the
Racketeer Influenced and Corrupt Organizations Act (RICO), originally
written to target organized crime, was eventually used against
pro-life groups
in the ‘abortion wars’ will not be reassured.

With experts
and attorneys already contradicting each other, two things seem

First, we will
discover what Section 113 truly means when someone challenges the
law. A candidate being mentioned on the Internet is; the
site offers a “service by which people send politically
incorrect postcards
without being required to furnish their

The site owner
has a history of “seeking declaratory and injunctive relief”
against the Communications Decency Act of 1996 through which “indecent”
computer communication that is intended to “annoy” was criminalized.
Fein believes Section
“warrant[s] a constitutional challenge.”

Second, this
is a hastily written, bad law that was tacked onto a popular bill.
Section 113 may seek to protect against real threats or violence
but its language is so vague as to endanger much broader political

It illustrates
why the organization Downsize DC is promoting a “Read
the Bills Act,”
which would require Congressmen to read measures
before voting on them.

It is sad that
such a commonsense goal sounds utopian.

19, 2006

McElroy [send her mail]
is the editor of
and a research fellow for The
Independent Institute
in Oakland, Calif. She is the author and
editor of many books and articles, including the new book, Liberty
for Women: Freedom and Feminism in the 21st Century

(Ivan R. Dee/Independent Institute, 2002).

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