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Annoying Anonymous Speech Online:

People are troubled by a just-enacted statute that extends part of telephone harassment law to the Internet. I think they're right to be troubled by it, and here's why.

First, the statute, with deletions marked by strikeouts and insertions marked by underlines:

47 U.S.C. § 223(a)(1)(C): Whoever ... in interstate or foreign communications ... 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....

(h)(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 [= 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].; 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
....

What does this practically mean?

1. This potentially criminalizes any anonymous speech on a Web site that's intended to annoy at least some readers, even if it's also intended to inform other readers. This is true whether the poster is berating a government official, a religious figure, a company that he thinks provides bad service, an academic who he thinks is doing or saying something misguided, a sports figure who he thinks is misbehaving, or what have you; so long as he's trying to annoy any recipient (whether the target, if the poster thinks the target is reading the blog, or the target's partisans or fans).

2. How is this different from traditional telephone harassment law? The trouble is that the change extends traditional telephone harassment law from a basically one-to-one medium (phone calls) to include a one-to-many medium (Web sites).

This is a big change. One-to-one speech that's intended to annoy the one recipient is rarely of very much First Amendment value; people are just rarely persuaded or enlightened by speech that's intended to annoy them. It has some value (see item 3 below), but to the extent that it's in some measure deterred, the loss to public debate isn't that great — speakers are still free to speak to others besides the person they're trying to annoy.

But one-to-many speech that is intended to annoy one or a few readers, but intended and likely to enlighten or persuade many other readers, is potentially much more valuable. Juan might think that the target of the speech deserves to be berated for his misconduct, and that the target's supporters deserve to be berated for siding with the target; but Juan might also want the rest of the public to hear about the target's misbehavior, and to be persuaded to think less of the target, or to act differently themselves.

Though the desire to annoy may sometimes be petty (and I'm using Juan just because Juan is our one anonymous coblogger here, not because Juan generally tries to annoy people!), it shouldn't strip the speech of constitutional protection. "[I]n the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment.... [E]ven when a speaker or writer is motivated by hatred or ill will his expression was protected by the First Amendment ...." And the same is true, I think, in discussion of consumer matters, of religion, of sports, and of other things, not just public affairs.

3. Orin suggests that this isn't a problem, because even traditional telephone harassment law has already been limited to exclude "speech [that] is protected by the First Amendment." Orin cites United States v. Popa, a case that set aside as unconstitutional a conviction of Ion Popa, who made several racist calls to the U.S. Attorney for the District of Columbia (the chief federal prosecutor in the District). The trouble, though, is that it's far from clear just what speech Popa protects.

A. One possible interpretation of Popa is that it bars telephone harassment prosecution when the "speech is protected by the First Amendment." At some level, that's almost tautological — of course when the speech is protected by the First Amendment, the First Amendment prohibits prosecution for that speech. But it also returns us to the underlying question: When is speech that's intended to annoy the recipient protected by the First Amendment? If someone calls not a prosecutor but a law professor and leaves an anonymous deliberately annoying racist message, is that protected? What if he calls a law student with such a message? What if he posts an anonymous blog post that says this? The poster would have little guidance about what he may or may not say.

Of course, when prosecuted, the speaker can say "my speech is protected by the First Amendment." But given that the statute draws no distinction between what constitutes protected annoying anonymous speech and what constitutes unprotected annoying anonymous speech, the speaker doesn't know what he may safely say, and the prosecutor doesn't have much guidance about what he should prosecute. It's as if Congress enacted a whole bunch of speech restrictions but tacked on an "except if the First Amendment prohibits this" to them. The result would be speech restrictions that are technically not overbroad (since by their terms they don't bar First-Amendment-protected speech), but that are practically too vague, since they provide little guidance to people about what they may say.

B. Another possible view is that the telephone harassment statute bars any prosecution for speech unless the speech falls within the traditional First Amendment exceptions, such as threats, obscenity (which means hard-core pornography), false statements of fact, fighting words, and the like. These exceptions are at least tolerably well-defined, and all of us already generally have to avoid speech that falls within these exceptions (since the federal and state governments have taken advantage of most of these exceptions to in fact outlaw or at least make tortious speech that fits in the exceptions).

But if that's the interpretation of Popa, then most garden-variety telephone harassment, of the sort that most people assume is fully prosecutable, would be unpunishable. Calling someone anonymously simply to insult them wouldn't be covered (such insults don't fit within the "fighting words" exception, since the anonymity and distance of the speaker makes it unlikely that the speech will start a fight). Likewise for calling someone to make an indecent suggestion, except when the suggestion is an actual threat of violence or is so sexually explicit as to be obscene (which is a pretty high threshold to meet). The very premise of telephone harassment law, as it's generally understood, is that some such speech — while protected in many media — is unprotected when said with the intent to annoy (and perhaps said to a particular person). Harassment law thus rests on the theory that there should be a new First Amendment exception recognized for "telephone harassment" that goes beyond just threats, fighting words, and the like. So the "speech is protected unless it's threats, fighting words, obscenity, incitement, or false statements of fact" theory is thus almost certainly not what Congress has had in mind, and is unlikely to be adopted by the courts.

C. Popa can easily be read, I think, as holding that speech that's "intend[ed] in part to communicate a political message" is protected from punishment by the statute. But it's far from clear that this would protect speech on a Web site that's intended to communicate a message about some company's allegedly mistreatment of its consumers, that's intended to criticize the performance of a sports figure, that's intended to express an annoying view about theology, or whatever else. What's more, it's often not easy to tell exactly what's a "political" message and what's not. The court in Popa held that racist insults of a high-level official are political. What about speech that criticizes law professors (whether racist speech, speech that casts aspersions on their intellect or teaching ability, or what have you)? What about speech that criticizes a particular student in racist terms, but implicitly conveys a message about school admissions? (Not that I would endorse such speech, of course; I just think that (a) it ought to be constitutionally protected, when posted on a Web site, even if it's intended to annoy, and (b) there's likely to be controversy about whether it's political.)

D. Finally, Popa can also be read as holding that speech is protected from the statute when the speaker "intend[ed] to engage in public or political discourse." "Public discourse" is broader than just "political message," and would certainly include religion and probably consumer matters involving large businesses and the like. But it too is a pretty vague term. Is publicly distributed personal criticism of a particular professional's skills, for instance, a lawyer's or a professor's, "public discourse"? There's no well-established First Amendment test for this, and the Court's use of the related term "public concern" has proven to be unpredictable and, I think, often misguided (see Part V.B of this article, starting with PDF page 46).

So on balance I think the extension of the telephone harassment statute to the Web is a mistake. The statute already has problems, and the extension risks substantially exacerbating those problems, by potentially covering one-to-many annoying Web speech as well as the somewhat less valuable one-to-one annoying telephone calls.

submandave (mail) (www):
While I agree that the change makes an unclear law even more obtuse, it just seems symptomatic of the general lack of tech savy and specifically internet savy folks on Capital Hill. It's as if the long-promised flying cars were finally delivered and the lawmakers simply opted to ammend existing traffic law.
1.10.2006 3:22pm
rbj:
The only value of this statute would be to go after spammers.

[Volokh says: Oddly enough, spammers probably wouldn't be covered by the law, because they aren't intending to annoy people. They doubtless know they annoy people, but that's quite different, and probably not prohibited, given the intent requirement. (If knowingly annoying people were prohibited, then the law would be even broader and even worse than it is.)]
1.10.2006 3:58pm
Timothy (mail) (www):
Got to love a world where being annoying is a thoughtcrime. We have always been at war with Eurasia.
1.10.2006 4:24pm
Cal Lanier (mail) (www):
I said I was done with this, but I do want to point out my argument that this was clearly, and dare I say obviously, intended to be restricted to VOIP (or other voice-based internet technology) for the reasons mentioned in my piece. I had an interesting time discussing this here, and ended up blogging a second time.

Here's a summary as to why I don't think there's a justification for assuming, as Eugene does, that these changes were intended to extend it to web-based communications:

  1. The section in question, TITLE 47 > CHAPTER 5 > SUBCHAPTER II > Part I > § 223, has the title "Obscene or harassing telephone calls", which seems to restrict the subject somewhat.
  2. The law was originally written (or amended) at a time when most internet access was made via dialup. This is what necessitated the addition of 223(h)(1)(B) to protect all potentially annoying or harassing internet activity from being covered because it was made via a phone call.
  3. The law used the word "communication" to cover the possibility of heavy breathing or hangups, not to address text-based communication.
  4. This newest change was intended to cover VOIP technology, while still protecting those people who might be using dialup.
  5. Had the legislators wanted this law to apply to all communications, the simplest way to achieve this would be a) change the title and b) delete 223(h)(1)(B).

As I said, lawyers are better able to determine whether or not all the various changes have buggered up the intent of a law that wasn't all that great to start with. And I'm not a lawyer, so it's possible that some of my observations are clueless, legally speaking. But I see no basis for asserting that the minor change was intended to do anything other than ensure that VOIP wasn't exempt under 223(h)(1)(B), since it otherwise would have been legal to harass people via internet telephony.

Now, I swear I'll shut up on this and do something drastic--like laundry.
1.10.2006 4:24pm
stevesturm:
Could the new subject be applied to someone who had their communication passed to others, perhaps without their consent and/or knowledge? For example, could it apply to someone who had an email forwarded to someone who claimed it was obscene or abusive? And could it apply to someone who posted a message on a like-minded website, only to see it copied and posted elsewhere?

Also, I never knew that the anonymity of the speaker/poster was a (determining) factor. In other words, is speech that can be prosecuted if made anonymously safe if the speaker identifies themself?

Thanks.
1.10.2006 4:43pm
PersonFromPorlock:
Um. RICO wasn't supposed to be about abortion protesters either, but look how it's used now. Under legal positivism the only reality the courts know is the text of the law, and if an ingenious prosecutor can make that sit up and bark, somebody's gonna get bit.
1.10.2006 5:10pm
Cal Lanier (mail) (www):
Sure. But Eugene is clearly assuming that the legislators did this intentionally.

However, I forgot to point out one thing in my summary--the Rule of Construction attached to 223(h)(1)(C):

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.

In other words, 223(h)(1)(B) is left unaffected.
1.10.2006 5:21pm
Wince and Nod (mail) (www):
But Eugene is clearly assuming that the legislators did this intentionally.

That's at all not how I see it. I see Eugene pointing out an unintended side effect.

Laws are much, much harder to debug than computer programs. That's why we should have fewer laws. Luckily, people aren't compelled to follow badly written laws like computers are compelled to follow badly written computer programs. Otherwise there would have been a precipitous drop in annoying humor, sarcasm ands invective on the Web! Boring.

Yours,
Wince
1.10.2006 5:36pm
WHOI Jacket:
man, X-Box Live is in serious trouble.......
1.10.2006 6:15pm
John Jenkins (mail):
1. Section titles are not considered in interpreting statutes.
2. The law was originally written in the 1930s therefore predating the internet.
3. The statute does not so limit the definition of communication; had the Congress desired to do so, it could have, so by negative implication other forms of communication are covered.
4. Yes, VOIP is clearly covered by this langauge. Too bad it was drafted in a way that was overinclusive.
5. Again, the title is irrelevant, and 47 U.S.C. § 233(h)(1)(b) refers to 47 U.S.C. § 230(f)(2) which defines an interactive computer service as
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.
Given that any VOIP communication necessarily uses an internet connection, this seems to undermine your VOIP argument however the newer provision controls over the older one, so anything covered by the new subparagraph (h)(1)(C) WOULD be included for the purpose of (a)(1)(C). This doesn't render (h)(1)(B) a nullity, because (h)(1)(C) applies only to (a)(1)(C). Thus we can read the new subparagraph in a way that does not render any portion of the statute a nullity and is written in such a way as to cover any form of communication. Whether courts would actually interpret it that way is open to question, but the law as written is ill-conceived (I'll say that the word "annoy" had a much stronger meaning when that was originally written, but that's a discussion for another time).
1.10.2006 6:26pm
Apodaca:
Samuel Taylor Coleridge's PfP writes:
RICO wasn't supposed to be about abortion protesters either, but look how it's used now.
Not to exacerbate a tangential discussion, but... what do you mean? RICO was never limited to organized crime:
As we said in H. J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 248 (1989), "[t]he occasion for Congress' action was the perceived need to combat organized crime. But Congress for cogent reasons chose to enact a more general statute, one which, although it had organized crime as its focus, was not limited in application to organized crime."
That excerpt from the court's opinion in NOW v. Scheidler (1994) was penned by noted liberal William H. Rehnquist. Writing for a unanimous Court, even.
1.10.2006 7:41pm
PersonFromPorlock:
Apodaca:

RICO was certainly presented at the time as being targeted at organized crime, just as this law is presented as 'merely' updating an old anti-harrasment law to include the internet. But your cite, from "But Congress for cogent reasons..." on, could as easily be from a future decision about this law if Eugene's fears are correct.
1.10.2006 9:14pm
Wintermute (www):
Damn, EV, I shot my wad on the later post, which came up first in my reader. I'm with you on worrying about this. There are some eggshell complainants out there; and defending oneself in District Court is not necessarily a revenue-neutral affair. I wait to see if EV's concerns are as widely blogged as Orin's assurances. Maybe next time I send the heads up to you instead.
1.10.2006 9:49pm
SDN (mail):
The problem with this law is simple: you will have to hire a lawyer and "prove your innocence" whenever someone decides they're offended.

I know a gentleman who has written many parodies using his own words to Disney showtunes. When he wanted to publish them, he was visited by several Mousey lawyers saying "You can't do this; we don't approve." When he pointed out that the Supreme Court had granted an exception for parodies, they calmly replied, "That's your opinion; let's take a 3 year trip thru the court system and find out. Uncle Walt keeps us on retainer whether we do anything or not; it won't cost us a dime. How much justice can you afford?"
1.10.2006 10:57pm
Steven Den Beste (mail) (www):
Caesar, at Ars Technica, thinks the main purpose of this was to make existing regs regarding harassing phone calls also apply to "Voice Over IP" phone calls (i.e. phone calls carried over the internet).
1.10.2006 11:35pm
rastajenk (mail):
I'm still with Cal an Orin on this one. Suppose, before the extension of this Act, you have a perv making threatening calls with VOIP. He gets hauled in to court and says, "But Judge, I wasn't using a telecommunications device; I was using the Internet! Nyah, nyah." He may face contempt charges, but it seems to me he scores on the technicality. How would any of you slippery-slope types word it to close the loophole?

"The problem with this law is simple: you will have to hire a lawyer and 'prove your innocence' whenever someone decides they're offended." Doesn't this work both ways? The merely offended person must get a lawyer and convince him he has a case, 'cause the police and prosecutors aren't going to expend resources every time someone cries wolf. And then doesn't that make it a civil case, not a criminal one? I'm venturing out of my league here, but all in all, I don't see this as any more dangerous than the VAWA in the first place.
1.10.2006 11:53pm
Apodaca:
Note also that Caesar says this bill was a "lame attempt" to address VOIP, for the following reason:
However, if you attempt to hide your identity while engaging in a campaign to annoy someone electronically, you could find yourself on the other side of a lawsuit. But this was already possible before this bill was passed.
Putting aside the "lawsuit" bit here -- since it's a criminal statute, the right word is really "prosecution" -- he's absolutely right. Whether or not Congress understands it, VOIP (and email, and IM, etc. ad naus.) anonymous harassment has been potentially prosecutable under section 223 since the 1996 CDA. When VOIP came along (since 1996, for sure), the statute needed no amending; of course, the lack of a problem has never stopped Congress from improposing solutions....
1.10.2006 11:56pm
Cal Lanier (mail) (www):
Hey. I said that once, twice, or even three times in the Orin thread. However, I still think the fact that the law explicitly applies to phone calls has to count for something.
1.11.2006 12:36am
charles hardin (mail):
That's very true. Well said. I totally agree with you.
1.11.2006 4:34am
Jeroen Wenting (mail):
If in the past it strictly applied only to one-one communications it would then not have applied to recorded phone conversations or phone conversations using speakerphones on at least one end of the conversation.

Unless this was indeed the case nothing really changed. In fact, you can know far more clearly online whether you're likely to have a larger audience than when using a telephone.

The "with intent to annoy, abuse, threaten, or harass " IMO guarantees that it's up to the claimant to show without reasonable doubt that it was indeed the intent of the defendant to annoy.
As there's always someone who will be annoyed by anything at all this can likely be thrown out in all but the most severe cases.

If the burden of proof were reversed it would indeed be extremely troublesome, but that doesn't seem to be the case.
1.11.2006 5:50am
k. pablo (mail) (www):
they have passed their ridiculous law. now let them try to enforce it!
1.11.2006 11:40am
RichardJones (mail) (www):
These revisions, as well as all of the provisions of the original Bill, apply only to those who post anonymously, right? So, if one always identifies oneself, then only in rare cases, such as those where a person wishes to expose unfair treatment by an entity which holds power over that individual, without alerting the entity that they are whistle-blowing, does exists a danger of legal jeopardy for that individual under these changes. Right?

If I am right, then the question becomes an interpretation of the meaning of "annoy, abuse, threaten or harass", and whether the intent of the communicator actually fit that description. In a whistle-blower scenario it would seem obvious that while the communication may have a damaging effect to the target, the intent was not to damage, but to protect oneself/or others from harm.

If these revisions, or a clearer phrased like construct, can serve to clean up some of the ill manners exhibited on the internet I am all for it. There are a lot of cowards out there flaming those with whom they disagree, why not make them stand up and be counted for what they say; or face punishment if they continue their cowardly ways.
1.11.2006 6:46pm
mountainpilot (mail) (www):
Proponents of this law are saying that the issue serves only extend existing telephone laws to cover internet-based calls (VoIP) and is therefore a non issue. I've yet to see any explicit language that says the new amendment pertains only to voice traffic. Assuming it is not limited as such, then other provisions notwithstanding, it represents a previously unavailable assertion of government authority onto the written word (among other media).

As I read it, the amended applicability section basically says the law does not include "interactive computer services" but does include *every other type of traffic on the internet*. In other words it does not apply to [insert predefined term here of most of the stuff we could think of] and does include [everything else that currently exists or will exist at any time in the future].

Also, in refeference to the above:

Of course, when prosecuted, the speaker can say "my speech is protected by the First Amendment." But given that the statute draws no distinction between what constitutes protected annoying anonymous speech and what constitutes unprotected annoying anonymous speech, the speaker doesn't know what he may safely say, and the prosecutor doesn't have much guidance about what he should prosecute. It's as if Congress enacted a whole bunch of speech restrictions but tacked on an "except if the First Amendment prohibits this" to them. The result would be speech restrictions that are technically not overbroad (since by their terms they don't bar First-Amendment-protected speech), but that are practically too vague, since they provide little guidance to people about what they may say.

This tells me it's an extraordinarily poorly written and arguably dangerous law. Deliberately making ambiguous what is protected speech and what is not under explicit threat of incarceration for 2 years, can *only* serve to suppress the freedom of it. Moreover, it serves only to feed the ever-hungry litigious nature of this country. "I've been annoyed! I'm gonna sue!"

Both of these examples serve to suggest one of two things. 1) The authors attempting to legislate telecom policy are displaying wholesale incompetence in their understanding of the technology they're legislating or, 2) they understand exactly the implications of what they've done and it's a furtive attempt to assert stronger government control over what constitutes protected speech.

Malicious or incompetent. Pick one. It's what's for dinner.
1.12.2006 7:59pm
mountainpilot (mail) (www):
Please forgive the somewhat 'hyperbolic' tone of my post above. The previous was posted before I read the "Important Note to Helpful Readers" below. I actually cross-posted this from elsewhere, my own blog in fact, where I'm afraid I don't enforce the same standards of etiquette.
1.12.2006 8:04pm