• 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
    law
    ‘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
    Volokh
    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.

    Interestingly,
    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
    Kerr
    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.

    Daniel
    Solove
    , 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
    clear.

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

    The site owner
    Clinton
    Fein
    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
    113
    “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
    discussion.

    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.

    January
    19, 2006

    Wendy
    McElroy [send her mail]
    is the editor of ifeminists.com
    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).

    Wendy
    McElroy Archives

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