bulletin boards not covered by internet 'annoyance' law ?

[dusmcj]

it's always good to read how a bill modifies existing code...

having looked at HR3402 and how section 113 modifies US47/s223, I wonder if the code as modified does not exclude bulletin boards like this one and other message boards from the venues to which the prohibition against communications intended to anonymously "annoy, abuse, threaten or harass" applies. For:

S.113 modifies US47/s223(h)1, which originally stated:

(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.

The modification:

(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)).'.

s223(a)1(C) reads:

(C) makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications;

So at first reading, the bill simply modifies the law to now say that such communications are also illegal if they flow over the internet.

However, if we look back at s223(h)1(B) we note that "interactive computer services" are NOT included in the venues considered by the law.

So this would seem to bring us to the question of what an "interactive computer service" is. This in turn is defined at US47/s230(f)2 as

(2) Interactive computer service
The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

So that it would seem that the law, in fact regardless of the modifications introduced by 3402/s.113, considers interactive computer services to be environments which provide for access by multiple persons, for purposes unstated. We also note that the flavor of the s230(f)2 definition seems aimed at facilitating the exemption of ISPs from liability for content delivered via their systems (and in fact we smell the reek of the CDA as much of the motivation for this part of the code), and that a separate definition is provided at s230(f)3 for "information content providers". Which are not addressed in any way by HR3402.

Behind all this a question is being begged: what is the structural nature of the communications prohibited by s223, and in particular, does the law consider more than just point-destination communications whose specific target may feel annoyed, abused, threatened or harassed ? Does the law also consider virtual public venues like discussion boards etc. an environment in which communications are subject to the prohibitions of the section, whose intent appears to be to prohibit offensive acts directed at a particular individual, rather than any communications regarding that individual. I.e., is posting "Dick Cheney can fuck himself" pseudonymously on DU as illegal under this section as sending an email to [e-mail] with the text "go fuck yourself" with a forged header or simply a misleading 'From:' field ?

It would seem that this section only addresses uses of speech which are not Constitutionally protected because they constitute aggressive acts directed at a person by a disguised offender. If this is not the case and this section instead will now be construed to also prohibit legitimate, if offensive, online commentary about third parties, then of course fundamental questions are raised about the right to publish pseudonymously or anonymously, and the right to comment publicly about others, particularly including public figures. The usual suspect fascists (e.g. an ex NYC commissioner of police) have been crowing since 9/11 that "you have the right to privacy, but not the right to anonymity". If they insist, I suppose that yet another dreary defeat of their attempts at instituting propriety will come to pass. It would seem like this law would be a weak basis for such attempts, though. (Weaker than they usually are, even.)

[Boojatta]

1. "crowing 'you have the right to privacy, but not the right to anonymity' "

Did they change copyright law? If I'm not mistaken, copyright law recognizes a right to anonymity.

[necso]

2. Yeah,

but it comes down to interpretation. And if you're willing to just rationalize doing whatever you want to do, then who knows (certainly this administration already has a track record of this). And what comes next? Under what other circumstances am I next going to have to reveal my identity? And exactly who is really going to be prosecuted under this law?

And it's a step in the wrong direction: an erosion of anonymity versus known-identity relative to speech (if the target is something other than constitutionally protected free speech -- say so in no uncertain terms -- and right in line with the prohibition). Why should annoying another person without telling him your name be any different than annoying him and telling him your name (if this is what "identity*" means). Because you can trace him that way? What if I'm John Smith -- there are a zillion John Smiths -- do I have to give him my home address -- my social security number? Send him a portfolio of my personal data? Fingerprints? And if all I have to do is say John Smith, then the average person has little way to track me, if I am discrete (although people with rare names would be at some considerable disadvantage.).

And what is annoying? If I call a person a butthead, is that annoying? And can I even do something commonly considered annoying without it being considered as having been intent under this law? Or, at least, do I have any real chance of making my case when up against the power of the state?

And what about mass communications? What if one out of a thousand recipients finds the message annoying? What if all do? What if I knew that it would be annoying to just that one and sent it to all one thousand?

And what? If I threaten a person and reveal my identity it's not a crime? (Of course not, the point is that there are or should already be laws against this. It will be apparently more of a crime, however, if I don't reveal my identity -- along with throwing in "offenses" like being "annoying", which, to my knowledge, is no crime yet.)

And more than this, doesn't this amount to an attack on the right against self-incrimination? -- For it amounts to making it a (another) crime not to reveal your identity (albeit in select circumstances).

Now, are there circumstances where anonymity is too much a cover for evil (speech) acts -- and where preserving it furnishes no substantial protection for free speech.

Maybe? Probably? Broad brush approaches bother me when speaking of fundamental constitutional issues. I am a specific-circumstance type of guy myself, and I would personally err on the side of protecting anonymity. And if the speech itself is already forbidden -- then why add penalties because I don't reveal my identity? So I get four (or whatever) years instead of two?

But this crap is just too general. You want to ban certain types of things not previously illegal from being sent directly from an offender to the target person's computers, PDAs, phones, whatever (directly to his personal data-communication-network interface devices basically), say so. (But leave out the "annoying".) And making it more of a crime not to reveal one's identity when committing a crime is just too much for me. And any looseness of language here opens the door to trouble. Generalizing is good in some cases, but bad in others. And the implicit references to this and that are not helpful in a matter so critical (potentially) to free speech.

It's the tip of the wedge, as I see it. Maybe this wedge doesn't take it the whole way, but it's too much of a start. And maybe it will end up taking things farther than seems obvious.

Every-and-any-one else is free to disagree.

...

*: This is rhetoric to point out that mere name isn't really enough. Generally, the entire piece is rhetoric, aimed at raising questions -- as opposed to discussing specifics of the various laws and rulings bearing on these matters. Because in all these things, interpretations are what matters -- and one interpretation can have broad effects.

[dusmcj]

3. news.com (McCullagh) analysis

at http://news.com.com/FAQ+The+new+annoy+law+explained/2100-1028_3-6025396.html?tag=st.prev

his take seems to be that the "interactive computer services" exception is overriden by the section 113 modifications.

Having far less experience in this realm (arguing legal wording with politicians with agendas), my own take is that the most obvious explanation is that the authors were sloppy and tech-unaware, and were needled to extend anti-stalking law to VoIP (internet phones).

If we're feeling obnoxious (intending to be annoying ?) then explanation #2 is that the usual suspects want internet users to have Character and Confidence, and be Accountable for their online behavior - i.e., if you say that Dick Cheney (and most of the rest of the GOP) can go fuck themselves, then if you were intending to annoy them you should use your real name so that you can engage in manly combat on the field of honor with them (i.e. get sued by them), not sneak around like they never do. I'd suggest they get in touch with my friend Ben. Ben Dover.

This is still developing, and there is a nonzero chance that some asshole will attempt to apply the law to protected speech and generate a court test.

The point about the relevance of copyright law is excellent, I shall pursue...