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A Skeptical Look at "Create an E-annoyance, Go to Jail":
Declan McCullagh has penned a column that is custom-designed to race around the blogosphere. It begins:
  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."
  This is just the perfect blogosphere story, isn't it? It combines threats to bloggers with government incompetence and Big Brother, all wrapped up and tied togther with a little bow. Unsurprisingly, a lot of bloggers are taking the bait.

  Skeptical readers will be shocked, shocked to know that the truth is quite different. First, a little background. The new law amends 47 U.S.C. 223, the telecommunications harassment statute that goes back to the Communications Act of 1934. For a long time, Section 223 has had a provision prohibiting anonymous harassing speech using a telephone. 47 U.S.C. 223(a)(1)(C) states that
[whoever] 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 . . . shall be [punished].
  Seems pretty broad, doesn't it? Well, there's a hook. It turns out that the statute can only be used when prohibiting the speech would not violate the First Amendment. If speech is protected by the First Amendment, the statute is unconstitutional as applied and the indictment must be dismissed. An example of this is United States v. Popa, 187 F.3d 672 (D.C. Cir. 1999). In Popa, the defendant called the U.S. Attorney for D.C on the telephone several times, and each time would hurl insults at the U.S. Attorney without identifying himself. He was charged under 47 U.S.C. 223(a)(1)(C), and raised a First Amendment defense. Writing for a unanimous panel, Judge Ginsburg reversed the conviction: punishing the speech violated the Supreme Court's First Amendment test in United States v. O'Brien, 391 U.S. 367 (1968), he reasoned, such that the statute was unconstitutional as applied to those facts.

  Under cases like Popa, 47 U.S.C. 223(a)(1)(C) is broad on its face but narrow in practice. That is, the text looks really broad, but prosecutors know that they can't bring a prosecution unless doing so would comply with the Supreme Court's First Amendment cases.

  That brings us to the new law. The new law simply expands the old law so that it applies to the Internet as well as the telephone network. It does this by taking the old definition of "telecommunications device" from 47 U.S.C. 223(h), which used to be telephone-specific, and expanding it in this context 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."

  Now I suppose you can criticize Congress for being lazy. They haven't rewritten the old 1934 statute in light of the modern First Amendment, and that has resulted in a criminal statute that looks much broader than it actually is. The new law expands the preexisting law by amending the definition of "telecommunications device," which maintains the same gap between the law on the books and the law in practice. The formulation is a bit awkward. But the key point for our purposes is that the law is not the "ridiculous" provision Declan imagines. It looks funny if you don't know the relevant caselaw, but in practice it simply takes the telephone harassment statute we've had for decades and applies it to the Internet.

  UPDATE: Cal Lanier takes a look, and concludes that this is just about making sure the telephone harassment law applies to VOIP.
Bryan DB:
It's interesting that the Hudson v Michigan column, below, brings this quote: "Why are such things being decided by the courts, rather than our legislators?"

And here, you've got the answer. The legislature is so lazy that the courts are required to bring some common sense to the law.

regarding your last comment, it seems like you could say that the law is, actually, ridiculous, and it's only the judicial interpretation that saves it.
1.10.2006 1:51am
Craig R. Harmon (mail) (www):
What sort of 'over the internet' speech would be criminalized, then? Leaving a comment asking if the person's refrigerater were running and suggesting that they chase after it if it is?

Seriously, though, would this criminalize spamming comments at bloggs, for example? Those are annoying. What, exactly is in view here, do you know?
1.10.2006 1:54am
Cal Lanier (mail) (www):
I'm reasonably sure that that the change is all about VOIP. FCC has consistently held that it's an information service, not a telecommunications service. So if a stalker doesn't use a phone, he's not using a telecommunications device, and under the old law wouldn't meet the criteria. 123(h)(1)(B) specifically excludes interactive computer services, so it's pretty clear it was never intended to apply to internet postings. And if that's not enough, there's this summary from Domenici's office saying that it was intended to apply to new technologies like VOIP.

I blogged about it here: Annoy Away. Just Put It In Writing.
1.10.2006 2:09am
Cal Lanier (mail) (www):
Oh, and I meant to add: I've been surprised at the fuss about this, and even your writeup doesn't include VOIP and takes for granted that Internet postings are covered.

So if there's some legal aspect I'm completely missing because of my woefully limited technologist blinders, I'm going to be interested to hear about it. This just seemed really obvious to me.
1.10.2006 2:13am
minnie:
UPDATE: Cal Lanier takes a look, and concludes that this is just about making sure the telephone harassment law applies to VOIP.

Thank goodness. But wait. Was Orin saying it would be okay with him if it applied to stuff written on the Internet? He first wrote that "expanding it in this context 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" is okay with him.

It would not be okay. It would be ridiculous, in fact. Orin's tolerance for Big Brother seems to grow larger every day.
1.10.2006 2:40am
Bob Woolley (mail):
Applies to telephone and internet now, eh? Whew. Well thank God I can still go down to Western Union and have them send an anonymous telegram to somebody telling him he's a ..-.  ..-  -.-.  -.-  ..  -.  --.  /  ..  -..  ..  ---  -
1.10.2006 3:42am
Roger Schlafly (www):
VOIP may have been the purpose, but the law seems to cover email, text messaging, mailing lists, usenet, and maybe even blogging.

Orin wants us to be reassured that even we are convicted under this law, we might escape jail on appeal if we use a Free Speech argument. Okay, I am reassured, but I'd rather not get threatened with jail in the first place.
1.10.2006 3:57am
Cal Lanier (mail) (www):
"the law seems to cover email, text messaging, mailing lists, usenet, and maybe even blogging. "

The law specifically excludes "interactive computer services". Check the links I provided above.
1.10.2006 4:18am
sadandbeautiful:
McCullagh is (in)famous for spinning these kind of things. He's the one who wrote that Gore had said he'd invented the Internet. Other than that, he writes pretty well.
1.10.2006 5:32am
ffault:
If Popa was reversed, then what kind of prosecution would qualify as constitutional? Can anyone give an example of an Internet activity that would violate this law?
1.10.2006 6:45am
Brett Bellmore (mail):
So, essentially what has happened here is that the President has signed a law which is blatently unconstitutional as written, supposedly on the assumption that the courts won't permit it's unconstitutional aspects to be enforced. Been there, done that, got the dagger right through my political free speech rights to show for it.

I suppose the next step in this game is when the subject is litigated, and the courts shock everybody by NOT enforcing the 1st amendment yet again, Bush will express suprise that the law wasn't even more oppressive than he'd expected when he signed it.

Sorry, Orin, but all three branches have their own independent obligations to not violate the Constitution. They're not supposed to be passing/signing unconstitutional laws, and expecting the courts to render their oath breaking harmless. We're perfectly entitled to be enraged by such laws, even if the courts do happen to occasionally save us from them.
1.10.2006 6:57am
Apodaca:
Cal Lanier says:
The law specifically excludes "interactive computer services". Check the links I provided above.
The law excludes providers, but the 1996 amendment inserting "telecommunications device" has been interpreted to apply to end-user devices such as modems:
[fn 5] The Act does not define "telecommunications device". By Order dated February 27, 1996, we asked the parties to address whether a modem is a "telecommunications device". Plaintiffs and the Government answered in the affirmative, and we agree that the plain meaning of the phrase and the legislative history of the Act strongly support their conclusion. "Telecommunications" under 47 U.S.C. § 153(48) means "the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form of content of the information as sent and received." The plain meaning of "device" is "something that is formed or formulated by design and usu[ally] with consideration of possible alternatives, experiment, and testing." Webster's Third New International Dictionary, 618 (1986). Clearly, the sponsors of the CDA thought it would reach individual Internet users, many of whom still connect through modems. See, e.g., 141 Cong. Rec. S8329-46 (daily ed. June 14, 1995) (statements of Sen. Exon and Sen. Coats).
ACLU v. Reno (ED Pa 1996)

In short, this is absolutely not limited to VOIP, and hasn't been since 1996. Cal's theory is mistaken.
1.10.2006 7:46am
Apodaca:
To put this in starker terms: section 223 was famously amended to apply to "telecommunications devices" by the Communications Decency Act. In addressing one of the amended subsections dealing with indecency, every commentator and every court -- including the Supreme Court -- regarded the revised statute as applying to Internet speech. It would be passing strange if a parallel subsection -- the one dealing with anonymous harassing communications -- using the same terminology were inapplicable to Internet speech.
1.10.2006 8:22am
John Jenkins (mail):
Brett, the statute is not unconstitutional as such. It is unconstitutional as applied to protected speech, which is not the same thing.
1.10.2006 8:47am
Anonny Muss (mail):
Thank you, Orin, for defending your big brother. The law is okay! I mean, I certainly won't serve my FULL term punishment because I can appeal it all the way to the Supreme Court! Thanks for that clarification. I hope this post wasn't annoying to anyone, if so, I sincerely apologize.
1.10.2006 8:48am
markm (mail):
The trouble is, that poor interpretation of the law looks plausible enough that some halfwitted lower-court judge will let a case go forward, and someone will wind up with about $100K in legal fees before there's a higher court ruling. Hopefully, it will be the ACLU...
1.10.2006 8:53am
John Armstrong (mail):
Coming to this from a non-lawyer's perspective, I have to say that bloggers in general are pretty much blameless for "taking the bait". Yes, you know that such-and-so SCOTUS ruling will most likely handle their complaints, but will most people? I consider myself pretty astute, and I certainly wouldn't have known from the text of the law about that supposedly implied adjustment to its meaning.

Look, there are more effects to legislation than enabling prosecution. What about all the bloggers (or other website maintainers, or IRC users, or AIM users...) who have neither your legal acumen nor McCullagh's righteous indignation? I find it very likely that they will be cowed into avoiding speech because they think it's prohibited, whether or not it actually would be in practice. The real-world effect of this law as written and interpreted by the vast majority of those to whom it applies is to prohibit constitutionally protected speech.
1.10.2006 8:54am
Medis:
So, what should we say about a law that, if taken seriously, would be unconstitutional in 99.9999% of its applications?

It may not be "facially unconstitutional", since it could conceivably be used in that remaining 0.0001% of its applications. But I think "ridiculous" is a pretty apt word.
1.10.2006 8:57am
Medis:
Come to think of it, this sounds like a statute ripe for an overbreadth and/or vagueness challenge.
1.10.2006 9:06am
ThatSOB:
First Amendment rights only apply to interaction between government and a citizen (generally speaking, a political situation). One individual blasting out against another individual or company is not a First Amendment right.
1.10.2006 9:10am
Daniel San:
I wonder how this can survive an 'overbreadth' analysis. The statute, on its face, clearly criminalizes protected speech. On that basis, I would not expect it to survive a First Amendment challenge. However, since it mirrors language that has been on the books for a long time, the language has apparently been allowed and simply narrowed by interpretation in light of the First Amendment.

Language like this is the very reason for we have overbreadth analysis. People are left to wonder whether their protected speech can be punished criminally. It could certainly have a chilling effect.
1.10.2006 9:17am
Stevethepatentguy (mail) (www):
For those that are interested Bob Woolley's Morse code is something that rhymes with "bucking idiot"
1.10.2006 9:32am
OrinKerr:
Minnie, Annony Muss,

Can you explain to me why you think I am defending Big Brother? I thought I was explaining why the law *isn't* Big Brother, not explaining why Big Brother is okay. I look forward to your explanation.
1.10.2006 9:36am
Jim Harper (mail) (www):
Declan has done a service by reading the statute the way an average citizen would. Perhaps he purposefully avoided looking for case law that hems in the application of the original statute. Fine. The average Internet user would have no way of knowing to look for it. Point to Declan.

Where is the rule of law when it takes an Orin Kerr to figure out what the law says?

Shame on Congress for passing this dreck. Declan was right to criticize it. Orin, your parsing is good, and undoubtedly technicially correct, but it comes off as an apologia for poor drafting.
1.10.2006 10:06am
Medis:
ThatSOB,

That isn't what the First Amendment says, and it isn't Supreme Court doctrine.

Daniel San,

I just checked Popa, and the DC Circuit explicitly declined to reach the overbreadth issue on the ground that it was sufficient in that case to hold that the statute was unconstitutional as applied. Even if they had reached that issue, extending this statute to the internet (I am still not clear about whether it only reaches VOIP, even if that was the intention) might change the necessary overbreadth calculus.
1.10.2006 10:10am
Medis:
Jim Harper,

And what you are raising is essentially a "void for vagueness" challenge--a well-recognized part of Supreme Court First Amendment doctrine.
1.10.2006 10:21am
Jim Harper (mail) (www):
@Medis:

Well recognized by lawyers . . .
1.10.2006 10:30am
frankcross (mail):
Orin, you're not defending big brother, but the post does read a little oddly. You note:

"It turns out that the statute can only be used when prohibiting the speech would not violate the First Amendment."

Sure, but that's always the case. Couldn't you could make the same argument about a contemporary passage of Alien &Sedition Acts? Say: They're not so bad, they can only be applied when consistent with the First Amendment. Actually, I think it's still bad, even ridiculous.
1.10.2006 10:38am
Medis:
Jim,

I think you may have misunderstood me. The point of the "void for vagueness" doctrine is exactly the point I take you to be making: a law violates the First Amendment when it prohibits speech in unclear terms because such a law does not adequately inform potential speakers about what speech is prohibited and what speech is allowed, and thus chills lawful speech.

So, I was just suggesting that your point was also a legal point, meaning that your concerns are actually grounds for a legal challenge to this law.
1.10.2006 10:40am
eng:
Hmm. This belongs in the category of "why do we have legislative laws again?"

If we go back in our minds to the Laws of the Twelve Tables we see a very basic principle in the elders of the state codifying the law: it makes it clear and easily understandable for any citizen to know the law--rather than the law being merely in the minds of a few men who devoted themselves to studying it.

Then, we have this wonderful common-law system. Its great, seems like its based on custom, but over time it struggles against the weight of its history. Knowing what the law says suddenly requires learning a substantial body of case law. Some scholars try to plug the gap unofficially--e.g., black's law dictionary. Ultimately, though, the problem is deemed intractible and parlament is ceded the right initially only to take the existing common-law rules and write them as concise statutes but eventually to write new laws that contradict the common-law rules themselves.

I'm sure law professors might be disappointed, but when the law actually requires detailed case knowledge, the law-makers have messed up.
1.10.2006 10:48am
FNA Wright:
"prosecutors know that they can't bring a prosecution unless doing so would comply with the Supreme Court's First Amendment cases."

Yes. It is well known that prosecutors exercise great caution in protecting the constitutional rights of all citizens. That's why there have never been any unsuccessful cases brought for obscenity, topless dancing, driving while black, etc.

Puh-leeze.
1.10.2006 10:50am
Medis:
eng,

Of course, these days the codebooks are not much more accessible than caselaw, in the sense that it is very difficult to understand a lot of codified law--indeed, sometimes that is true even with extensive study. So, I'm not sure there is a good general solution to the problem of providing adequate notice to ordinary citizens of what the law requires in specific situations.

But part of the point of the "void for vagueness" and "overbreadth" doctrines is that speech regulations, in light of the First Amendment, have a particularly high burden of ex ante clarity. And so Orin's reliance on "as applied" challenges to the law as a clarification device seems particularly inappropriate.
1.10.2006 10:57am
ALPer (mail):
FNA, Actually, there have been no prosecutions for “driving while black.” DWB is a shorthand for a pretense of probable cause exercised only against black people, where the probable cause turns up evidence of another, constitutional crime. Race cannot serve as a proxy for probable cause, and such an arrest and search would generally be invalid, but the crime charged would still, in general, be constitutional, and a conviction would be upheld.

There have been successful obscenity prosecutions, and convictions that have been upheld by the courts because there is a narrow band of material that can be prohibited, as a matter of the first amendment.
1.10.2006 11:04am
Jim Harper (mail) (www):
@Medis:

I understand. Thanks. I agree that it's susceptible to a void for vagueness challenge, but my point (which eng has fleshed out some) is that ordinary people's freedom of action is constricted by statutes like this even if there is a full legal defense. The fact of a void for vagueness challenge doesn't help the non-lawyer who has gone to the statute books, trying to comply, and found this language.

So your point noting the (technical, legal) existence of the challenge sounded like a counterpoint to mine which focuses on the real-world costs to liberty of bad statute drafting.
1.10.2006 11:11am
Apodaca:
Sez That SOB:
First Amendment rights only apply to interaction between government and a citizen (generally speaking, a political situation). One individual blasting out against another individual or company is not a First Amendment right.
Methinks a speech-related federal criminal statute, and the underlying power of prosecution, qualify as a govt-citizen interaction sufficient to trigger the First Amendment.
1.10.2006 11:19am
Cal Lanier (mail) (www):
"Cal's theory is mistaken."

It's not a theory. The press release describing the law makes it clear that this is the intent.

"The law excludes providers"

No. The law excludes "interactive computer services". Here's the complete definition of "telecommunication device":

(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,
(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)).'.


In other words, the use of interactive computer services does not constitute a telecommunication device.

Now, before you cite a million pieces of case law to demonstrate why this isn't the case, recall a simple fact: The new law added (C). (B) was already there.

If, as you say, "telecommunications device" includes internet communications, then (C) is irrelevant. It's (B) that is not providing the protection it explicitly appears to provide, and (B) was in play long before these changes.

Clearly, the text in (C) was added it to ensure that VOIP calls were not excluded from the law by a loophole. If (B) doesn't provide protection to interactive computer services, then (C) wasn't necessary at all.

So if we are all going to be trundled off to jail for annoying people, the new law did nothing to create the problem.

I find it very difficult to believe that (B) can be construed as anything other than the exclusion of all internet-based communication. But y'all are the lawyers.
1.10.2006 11:29am
Medis:
Jim,

But the void for vagueness doctrine is explicitly based on "the real-world costs to liberty of bad statute drafting." So it is not so much a "counterpoint" to your argument as it is the legal dimension to your argument.

In other words, I think you are assuming that I brought up the void for vagueness doctrine in order to show it was somehow OK if a law restricting speech was poorly drafted (I guess that would be because this doctrine would provide a defense to prosecution). My point is actually the opposite: the problem you identified is so serious that it not only makes such a law not OK as applied, but it also makes such a law facially unconstitutional.

In short, sometimes legal doctrines are not the enemy of common sense--sometimes they actually help.
1.10.2006 11:38am
Apodaca:
Daniel San says:
I wonder how this can survive an 'overbreadth' analysis. The statute, on its face, clearly criminalizes protected speech. On that basis, I would not expect it to survive a First Amendment challenge.
I think the catch is that overbreadth doesn't mean just any old kind of overbreadth:
It remains a "matter of no little difficulty" to determine when a law may properly be held void on its face and when "such summary action" is inappropriate. But the plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from "pure speech" toward conduct and that conduct - even if expressive - falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect - at best a prediction - cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.
Broadrick v. Oklahoma, 413 U.S. 601 (1973) [emphasis added]
1.10.2006 11:48am
Medis:
Cal,

Section 223(h)(2) incorporates the definition of "interactive computer service" in Section 230(f)(2), which provides:

"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."

I'm not yet sure exactly how (B) and (C) interact, but it doesn't seem that all "internet-based communication" counts as using an "interactive computer service". Indeed, that principle would wipe out VOIP as well, so it can't be that broad.

Incidentally, is "The Volokh Conspiracy" an "interactive computer service" with respect to the commentators? Are we multiple users with computer access to a computer server? I'm honestly asking--I don't know enough about how this stuff works.
1.10.2006 11:57am
Apodaca:
Cal writes:
If, as you say, "telecommunications device" includes internet communications, then (C) is irrelevant. [...]

So if we are all going to be trundled off to jail for annoying people, the new law did nothing to create the problem.

I find it very difficult to believe that (B) can be construed as anything other than the exclusion of all internet-based communication. But y'all are the lawyers.
The answer is, yes, that (C) is irrelevant. 47 USC 223 absolutely did apply to Internet communications from 1996 on -- either that, or the Supreme Court was just plain mistken when it construed the CDA in its Reno v. ACLU decision. I'm inclined to think SCOTUS was right, if only because they are final.

I think you're right that the statutory text is very confusing. The ISPs wanted an exemption to take them off the liability hook, so the "interactive computer service" exclusion was part of the '96 Act. This point obviously puzzled the 3-judge panel, but they concluded -- in part because the gov't conceded the point -- that user devices such as modems were telecommunications devices. (See fn 5 quoted above.)
1.10.2006 12:00pm
Medis:
Apodaca,

Of course, one might wonder what non-speech conduct the statute reaches. The original statute may have contemplated such non-speech conduct ("whether or not conversation or communication ensues")--I guess that means something like hangups, and maybe heavy breathing (although that might count as "communication"). But as applied to the internet, the plausible scope of the statute with respect to non-speech conduct versus speech conduct seems to diminish.

In any event, the statute clearly reaches a substantial amount of speech as well--indeed, by design. So that particular part of overbreadth doctrine is already satisfied.
1.10.2006 12:05pm
Jim Harper (mail) (www):
@Medis:

Roger that. We're in agreement.

I guess I'm just disgusted that Congress - whose one job is statute writing - can do so badly. I worked on the Hill and continue to be amazed at how such smart, dedicated people can come up with such crappy product.

To the extent Orin Kerr explains, or doctrines like "void for vagueness" ameliorate, badly written statutes, that just takes the focus off the disservice we are getting from Congress.

(over and out - thanks)
1.10.2006 12:16pm
Apodaca:
Medis writes:
Of course, one might wonder what non-speech conduct the statute reaches.
Smells like O'Brien to me.
1.10.2006 12:22pm
magoo (mail):
Man, I am in Big, Big trouble.
1.10.2006 12:37pm
Cal Lanier (mail) (www):
Medis,

"Indeed, that principle would wipe out VOIP as well, so it can't be that broad. "

But that's why they added (C), precisely because otherwise (B) would exclude VOIP, which is functionally identical to cell phone or land line calls.

"Are we multiple users with computer access to a computer server? "

Yes. But we would be whether we were emailing, IMing, or just writing on our own website. The minute we use an ISP (whether wireless, satellite, cable, or dialup), we qualify as multiple users with computer access to a computer server.

The debate gets hairy when you start discussing the difference between "service provider" and "content provider", but fortunately this distinction is unnecessary. All this communication is excluded--except VOIP, which is functionally the same as the any other voice (as opposed to text) communication.


Apodaca:

"The answer is, yes, that (C) is irrelevant. "

Exactly. Because as my "theory" states, (C) was intended to ensure VOIP calls didn't escape through a loophole and have nothing to do with the threat you perceive.

All the talk about "intent to annoy" and so on is all well and good, but if text-based computer-enabled communication is not exempt from this law, then the threat existed long before these changes. I've seen no credible argument to dispute what the press release makes clear: the changes were intended to address a potential VOIP loophole.
1.10.2006 12:41pm
Hans Bader (mail):
Don't downplay the statute's First Amendment problems because of the D.C. Circuit's Popa decision (holding even annoying and racist speech to be protected) carving an exception out of this overbroad statute.

That ruling is only binding in Washington, D.C., not anywhere else. Many judges wouldn't follow Popa, and would follow poorly-reasoned state appellate decisions claiming that annoying-speech bans are aimed at "conduct not speech." (They seem to think they can eliminate First Amendment protection for speech by calling it "verbal conduct").

In New Jersey, for example, you can be imprisoned for saying something coarse or offensive to someone, if the prosecutor alleges that you were motivated by their race in doing so. A hate crime prosecution can thus be based on mere coarse or offensive language, without any threats or violence. (The New Jersey Supreme Court upheld the statute as written against a First Amendment challenge more than a decade ago).
1.10.2006 1:41pm
Medis:
Cal,

But even if the intent of (C) was only to include voice communications and not, say, text communications, I see no such limitation to voice in the language they used in the statute. And if that language was effective in carving out an exception for VOIP, I don't see why it would not be effective in carving out similar non-voice communications.

Apodaca,

It turns out that this was another issue that the DC Circuit avoided in Popa. The majority explicitly declined to decide whether the regulation was actually conduct-based and content-neutral, because it held that even under the intermediate O'Brien standard, it would fail as applied.

Judge Randolph, however, concurred in order to object to this possible line of reasoning (incidentally, I strongly suspect that I inadvertently plagiarized him in my prior post without recalling that I was doing so). He wrote:

"I do not agree with the government that § 223(a)(1)(c) 'is a generally-applicable regulation directed at conduct.' Brief for Appellee at 18. A hang-up call could, I suppose, be characterized as conduct only. So too perhaps calls consisting only of a grunt or a moan. Nonetheless, in general, telephones are devices for communicating and this statute regulates how telephones may be used for that purpose. The acts of picking up the phone and dialing are conduct. The act of speaking on the phone is also a form of conduct but it still is 'speech.' Whether the caller is exercising his 'freedom of speech' depends on what he says and why. A blackmail attempt, a bomb threat, a fraudulent promise, a kidnapper's demands-all are communications, but none are protected by the First Amendment. Partly this is because of history; partly it is because of the consequences of such communications. To characterize anonymous telephone calls intended to annoy or harass as 'conduct' rather than speech is to confuse the analysis."

So, like Judge Randolph, I don't think that we are really in an O'Brien situation. Rather, this is just a straightforward and explicit regulation of speech.
1.10.2006 1:43pm
Cal Lanier (mail) (www):
Medis,

The new text says `(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)).'.

223(a)(1)(C) says: 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;

My reading is that the new text applies only to this subparagraph, and this subparagraph is very explicitly describing a phone call (e.g., "called number" or "who receives the communications").

Now, you might wonder (as I do) why it only applies to (C), and not (D) causes phone to repeatedly ring or (E) makes repeated phone calls or repeatedly initiates communication with a telecommunication device, and suspect that maybe telemarketers got involved in the wording at some point. But nonetheless, it's only applying to (C) and not (A) and (B), both of which could go well beyond phone calls.

So it's pretty obviously intended only to address phone calls, and again, that suggests an attempt to include VOIP without attacking email or other internet-enabled communications.

If they were attempting to address a broader range of threats, the simplest thing to do would be remove subparagraph (B) of the definition.
1.10.2006 2:19pm
Alper (mail):
Hans, Can you please provide a citation for that New Jersey decision. I wish to read it, so that I may verify your assertions.
1.10.2006 2:22pm
Medis:
Cal,

I honestly don't see how you can see 223(a)(1)(C) as applying ONLY to phone calls. As you note, the first part says "makes a telephone call OR utilizes a telecommunications device" (emphasis added). The last part says "any person at the called number OR who receives the communications".

So, 223(a)(1)(C) included BOTH telephone calls AND the use of other telecommunications devices. Hence, I don't see how tying the new provision to 223(a)(1)(C) somehow limits the new provision to ONLY telephone calls.

Incidentally, I think you might have more luck with the words "transmitted . . . by the internet." Maybe that does not include communications actually occurring "inside" the internet--like, perhaps, these comments--in which case it might be limited to something like VOIP, or non-voice equivalents (I still see no limitation to voice, however).

On the other hand, I am still not sure that this comment feature actually gives me access as a "user" to some "computer server" (I could see that referring, for example, to ISPs but not to just any webpage which takes posts from the public). So, while I agree that (C) may not have been necessary to include these comments within the scope of 223, that is because I'm not sure (B) actually rules them out in the first place.
1.10.2006 2:49pm
NickM (mail) (www):
In the real world, few nonlawyers research either statutes or case law relating to their activities. Were it not for articles such as McCullagh's, it is likely that most persons potentially affected by the statute as written would be wholly unaware of its existence. In that case, their speech would not be chilled. Assuming that other federal courts would simply apply Popa, and that prosecutors would base investigatorial and charging decisions accordingly, does not the chilling effect on speech come in great measure from articles that ignore the limitations previously placed by courts on the reach of the statute?

Nick
1.10.2006 2:54pm
Bruce:
Cal, is my personal computer an "interactive computer service"? If not, then if I use it to initiate an anonymous e-mail to someone with the intent to annoy them, why doesn't that fall within 223(a)(1)(C)? The fact that I also use an interactive computer service to do so does not mean that I am not using other things that are not interactive computer services. The amended statute punishes the latter.
1.10.2006 3:26pm
Cal Lanier (mail) (www):
"223(a)(1)(C) included BOTH telephone calls AND the use of other telecommunications devices."

Sure. And 223(h)(1)(B) SPECIFICALLY excludes interactive computer services from the definition of telecommunications devices.

So your honor, we just added (C) to grab those people fooled into thinking they were protected under (B)!

This section of the law specifically applies to "obscene or harassing telephone calls", does it not? If they wanted to apply it more broadly, why didn't they just change "telephone calls" to "communications"?

The original exclusions were put in place because at the time it was written, most people accessed "interactive computer services" through a phone call, which at the time, meant that most internet activity could inadvertently qualify for a law that was intended for telephone calls.

Then, as technology advanced, it came to a point where the phone calls themselves could be internet activity. So the law was changed to ensure that the law still covered all phone calls.

I've been discussing this with the assumption that everyone is aware that the law has been constantly written with an eye to excluding computer interactive services just because they, too, are sometimes made over phone lines.

But perhaps I'm wrong--either in my assumption of the law's intent, or in your knowledge. I'm not sure which and, as I said from the very beginning, I've been surprised at the fuss over this.

It seems to me obvious that the law to which the text was added is expressly intended to apply to phone calls. By ensuring that 223(h)(1)(C) only applies to 223(a)(1)(C), anyone still on dialup isn't caught by (A) or (B), which they technically could be. All of us on cable don't have to worry so long as we're not using VOIP to make harassing phone calls.

Yes, they say "communication" rather than "voice" or "speech" in the law's text, but that was just to cover the possibility of heavy breathing or hangups. It was not intended to address computer, text-based activity, which they specifically excluded.

Now, is it possible that the law's changes could get us into a mess because the legislators have inadvertently been too broad too often? Absolutely, although I think you could mount a strong defense based on the law's heading (phone calls) and the clear exemption of 223(h)(1)(B). But that risk was there long before the addition of 223(h)(1)(C).

So are many of you saying that the section title doesn't matter at all? Even if that's true, you've still got a long way to go before you convince me that 223(h)(1)(B) is meaningless. But at least I'll understand why many of you aren't beginning with the presumption of telephone calls.

Good lord. With this many parentheses I may as well be writing code.
1.10.2006 3:27pm
John Armstrong (mail):
NickM,
Assuming you were responding to me, you do make a valid point. However, I think that since it's on an equal footing with mine that the way to err is clear.

(a) By enacting a vaguely-worded statute, congress chills speech for those who happen to hear about it unless
(b) they happen to hear about the existing exemptions which render it innocuous.

In both cases a member of the public may or may not possess certain information. The worst-case scenario (having heard of the law and not having heard of the exemptions) leads to chilling speech, and it can be avoided simply by writing the statute more clearly in the first place then there is nothing to excuse not doing so.

Further, whatever conjectures one may have or not as to intent, the plain meaning of the statute as written is clear. If congress wanted to enact restrictions on VoIP, it could have and should have done so. If it wanted to otherwise restrict the domain of the statute it could have done so. We cannot read legislation assuming mistakes or guessing at the intent of its writers.
1.10.2006 3:35pm
Cal Lanier (mail) (www):
"is my personal computer an "interactive computer service"? "

No. But that's irrelevant to your question, because in order to send an email, you have to use an "interactive computer service" (ISP). And since you can't send a email without an interactive computer service, the fact that you use a PC to send email doesn't matter.

"The amended statute punishes the latter."

Right. So they add an incredibly narrow exception that might, if all the legal decisions fall the right way, punish people for sending email with an intent to annoy, when they could have just changed the title to "Harassing Communication" and delete the "interactive computer service" exemption. Then they send out a summary that completely avoids mentioning that the law now covers email, instead focusing on its capture of VOIP phone calls.

Seems a tad convoluted, to me.

I'm going to bow out for a while and maybe write all this up for my blog. As I said from the very beginning, I'll be interested in seeing if it's my assumptions or everyone else's that are off base. Thus far, though, the law's intent seems squarely in line with my interpretation. But it's been fun.
1.10.2006 3:36pm
Apodaca:
Medis says:
So, like Judge Randolph, I don't think that we are really in an O'Brien situation. Rather, this is just a straightforward and explicit regulation of speech.
It seems to me there are a couple of problems with this position. First, the statute applies "whether or not conversation or communication ensues." Second, there's a nontrivial set of instances -- the repeated hangup call, or the air-horn blast -- that IMHO is regulable as conduct with no (or minimal, incidental) expressive aspect.
1.10.2006 3:41pm
Medis:
Apodaca,

Right, but that isn't an O'Brien situation. In O'Brien, the statute prohibited "destroying" or "mutilating" a draft card. The regulation was upheld because even though as applied it covered cases in which a draft card was being destroyed as part of an expressive act (eg, burning draft cards to protest the draft and/or Vietnam War), it was the destruction of the card that the statute was intended to prohibit, not the expression (and the government, according to the court, had a legitimate interest in preventing the willful destruction of draft cards).

Here, the statute by its plain terms includes not just non-speech conduct, but also speech. Hence, insofar as it is intentionally applied to such speech, this is not an O'Brien situation.

That said, O'Brien could come up if the government argued in the alternative that the part that covered non-communications (perhaps hang-ups et al) could be severed from the explicit speech parts (the actual communications). In that case, as I suggested, there could still be some speech content covered by the non-communication parts (eg, hanging up could be expressive in some circumstances), but that part of the prohibition would possibly be subject to O'Brien.

But one thing is certain: you don't create an O'Brien case simply by explicitly conjoining some speech and some non-speech conduct within the scope of a single prohibition (again, it is only an O'Brien case if the prohibition is aimed only at non-speech conduct). That would be an obvious dodge around the heightened scrutiny requirement for speech regulations.
1.10.2006 4:10pm
Medis:
Cal,

Again, though, it is uncontroversial that 223(a)(1)(C) applies to phone calls. What is controversial is your claim that it ONLY applies to phone calls, which is contrary to the plain language of 223(a)(1)(C).

And maybe it is just me, but I didn't see any contrary heading.
1.10.2006 4:15pm
Howie (mail):
I feel better , Thanks
1.10.2006 4:18pm
David Starr (mail):
[whoever] 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 . . . shall be [punished].

This language read in the ordinary way, makes anonymous spamming or flaming a crime. If this is not the case, then the language of the statue is not ordinary English but a secret code. Secret codes can mean what ever the person who decodes it says it means. At which point we are not longer under a rule of law, but under a rule of the decoders. That's a little scary.
1.10.2006 4:21pm
Joshua (mail):
Medis wrote:
But even if the intent of (C) was only to include voice communications and not, say, text communications, I see no such limitation to voice in the language they used in the statute. And if that language was effective in carving out an exception for VOIP, I don't see why it would not be effective in carving out similar non-voice communications.


Unless most members of Congress are completely clueless with respect to technology, I fail to see why they would have tied a law like this to only VOIP or any other specific technology, which, for all anyone today knows, could become obsolete - and take the law with it - in a few short years. (Keep in mind that the Pony Express lasted all of eighteen months before the telegraph rendered it obsolete - and this was in an era of American history when technology still evolved at a snail's pace.)

The ongoing legal and political debate over Internet gambling is informative here. The U.S. Department of Justice's position is that all forms of Internet gambling are made illegal by the decades-old Wire Act. I won't go into the details of the debate (it's really worth its own thread, and indeed I assume it has already been covered on this blog at some point in the past), but suffice it to say that some Congressional opponents of Internet gambling (most notably Sen. John Kyl) have enough doubts that the DoJ's position will prevail in court that they have been trying for several years now to push through an update of the Wire Act including more robust prohibitions on Internet gambling that aren't tied to any specific enabling technology.

Granted, all their attempts at such a ban so far have died on the vine, but they suggest that Congress has just enough tech savvy to know what kind of scope a piece of tech-related legislation needs to achieve its intended effect. Therefore, given 47 U.S.C. 223(a)(1)(C)'s generic language of "a telecommunications device," I'm inclined to believe that Congress purposefully set out to define the provision as broadly as possible.
1.10.2006 5:59pm
Hans Bader (mail):
Alper,

You asked for the citation of the New Jersey decision allowing prison time for offensive or coarse language towards minorities. It is State v. Mortimer, 135 N.J. 517, 641 A.2d 257 (1994), upholding N.J.S.A. 2C:33-4. It is summarized below.

Amazingly, the New Jersey Supreme Court made the statute even broader by reading out of the statute a limit on its reach that was arguably vague. So much for judicial restraint.

This is the same court that ruled that "consent is not a defense" to rape in State in the Interest of M.T.S. (N.J. 1992) (see criticism of the case in the Harvard Law Review), held that a single joking racist comment is illegal racial harassment in Taylor v. Metzger (N.J. 1999), and that the Boy Scouts do not have the right to select scoutmasters who agree with their positions in Dale v. By Scouts (N.J. 1999), rev'd Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

It is an activist, power-hungry state supreme court that likes to invade people's private lives.

Headnotes from the Mortimer case are below:

135 N.J. 517, 641 A.2d 257, 63 USLW 2015

Supreme Court of New Jersey.
STATE of New Jersey, Plaintiff-Appellant,
v.
David MORTIMER, Defendant-Respondent.

Argued Oct. 12, 1993.
Decided May 26, 1994.


Defendant pleaded guilty in the Superior Court, Law Division, Middlesex County, to fourth-degree harassment. Before sentencing, defendant's motion to dismiss indictment was granted. State appealed and the Supreme Court granted direct certification. The Supreme Court, Clifford, J., held that: (1) prosecution of defendant under harassment statute did not violate defendant's right to freedom of speech; (2) prosecution of defendant under harassment statute did not impermissibly enhance defendant's punishment on basis of motive; (3) harassment statute was not unconstitutionally vague after Supreme Court read out vague language; and (4) harassment statute did not violate equal protection clause.
Reversed and remanded.


West Headnotes

[17] KeyCite Notes

165 Extortion and Threats
165II Threats
165k25 Nature and Elements of Offenses
165k25.1 k. In General. Most Cited Cases

Statute, making it a crime if person, with intent to harass, “makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm,” was not unconstitutionally vague despite fact phrases of statute were vague when viewed in isolation; language was sufficiently clear to determine that statute proscribed a person from making a communication using one of enumerated methods with intent to harass recipient of communication. N.J.S.A. 2C:33-4, subd. d; U.S.C.A. Const.Amend. 5.
1.10.2006 6:10pm
minnie:
Orin writes:

Can you explain to me why you think I am defending Big Brother? I thought I was explaining why the law *isn't* Big Brother, not explaining why Big Brother is okay. I look forward to your explanation.

Sure Orin, but not being a lawyer, I speak in plain English, and address only the nub of issues, not the minutia.

Whether Cal is right and this applies only to telephone communications is an issue of fact. I have no input, but no doubt someone will sort that out before long and come up with an answer that persuades most others.

But it's beside the point, as your post indicated that even if this law applied to anonymous postings on the interactive Internet, and not just to telephone communications, you didn't see it as disturbing.

Orin, I originally came to this site because I was told it was an interesting site which had a libertarian streak. But when I started reading your posts, I was like, whoa.... Is it? If so, it sure is libertarianism in drag.

Your position is essentially, hey, don't worry about this, because at the end of the day, your Internet postings will (almost always) be protected by the First Amendment, which will be your defense in litigation if you are sued.

Orin, that is, imho, a preposterous position (as many posters above have hinted at) with all that it leaves out about legal ambiguities, the cost of litigation, the trauma of being accused, the chilling effect of badly drafted laws, draconianly invasive-of-privacy excess legislation, etc. Posting on the interactive Internet, which is by and large an anonymous space by its very nature, is not a one on one proposition. If a person had to watch every word he posts on the Internet for fear of reprisal, he would simply stop posting, and the interactive Internet would become colorless and drab, and fade away into nothingness....

You are a moderator of a blog, and, if I guess right, a careerist and therefore it is to your advantage to watch what you say. You also do not post anonymously, so again, another reason to be more circumspect in what you write than those who post anonymously.

But that is another reason why your posts, although laden with sophisticated legal points and extensive knowledge of communication technology, are sometimes not as interesting as those of people who write without identifying themselves and therefore without fear of any reprisal: emotional, professional, legal, etc.

Here's my answer. If you thought you were pointing out why that law isn't "big brother", you thought wrong. That law = Big Brother. It's the very definition of Big Brother. What did you think Big Brother was?

To a basically authoritarian mindset, such as yours, it might sneak by unnoticed, but personal liberty types can spot it a mile away: BIG BROTHER. And the most likely abuser of such a law, over time, would be the government itself.

Many things don't bother you. Yoo doesn't bother you. Alito's authoritarianism doesn't bother you. The list goes on. And that is why this law doesn't bother you, imo.

That's it. Maybe you could ask Eugene why such a law would be Big Brotherish. He seems to understand, and can explain it to you (and has, in his post on this subject) better than I can.

Hope you are not offended to the point of instigating litigation, but if you do decide to sue, they'll never take me alive :)
1.11.2006 4:03am
P_Hurst:
What about those of us whom do not posses rights under the US constition? How can a law like this allow us to converse at all via any form of telecommunications device? Its been said over and over, that even if this was brought to trial, the court would undoubtably dismiss the case based on the protection of speech in the first amendment. Not every person inside the US has such a right, I know I don't.
It would be very possible for someone in my situation to be prosicuted and/or fined/jailed.
1.12.2006 8:41am