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Cyberstalking or Free
Expression
Fiery debate surrounds
Section 113 of the thomas.loc.gov/cgi-bin/query/D?c109:6:./temp/~c109RIMnjs
 :
Violence Against Women Act (VAWA).
Is the new law
www.theinquirer.net/?article=28971
'evil' or merely redundant? Will it destroy
Internet communications as we know them or have no
effect? Do members of Congress actually read the
measures upon which they vote?
The last-minute addition,
also entitled "Preventing Cyberstalking," was
www.americanchronicle.com/articles/viewArticle.asp?articleID=4620
signed into law by President Bush on January 5th.
Section 113 amends www4.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000223----000-.html
47 U.S.C. 223, the telecommunications harassment
statute that is rooted in the Communications Act of
1934.
The telecommunications
statute prohibits anyone from using a telephone or
a telecommunications device "without disclosing his
identity and with intent to annoy, abuse, threaten,
or harass any person." In application this has
meant that you cannot anonymously annoy another
person through the phone lines. Penalties include
two years in prison and onerous fines.
Section 113 amends the
statute to include "any device or software that can
be used to originate telecommunications or other
types of communications that are transmitted, in
whole or in part, by the Internet." (Click
people.delphiforums.com/Nursevic/eannoy/eannoy2.html
here to see the specific additions to and
deletions.)
On January 9th,
electronic-freedom guru Declan McCullagh published
news.com.com/Create+an+e-annoyance%2C+go+to+jail/2010-1028_3-6022491.html?part=rss&tag=6022491&subj=news
an article entitled "Create an e-annoyance, go to
jail." Almost instant furor ensued.
McCullagh opened by
declaring, "It's no joke. Last Thursday, President
Bush signed into law a prohibition on posting
annoying Web messages or sending annoying e-mail
messages without disclosing your true
identity."
McCullagh and those who
agree with his interpretation of Section 113
represent 'the law is evil and will damage the
Internet' side of the debate. Their
news.com.com/FAQ+The+new+annoy+law+explained/2100-1028_3-6025396.html?tag=nl
warnings revolve around the two "A"s: "annoyance"
and "anonymous".
First Amendment scholar
Eugene Volokh volokh.com/posts/chain_1136873535.shtml
argues that Section 113, if consistently applied,
will criminalize annoying Web speech that is also
meant to inform. For example, the anonymous creator
of a blog that criticizes a politician may
sincerely wish the target to become uncomfortable
enough with public backlash to change his or her
behavior. If the site engages in damaging lies,
then existing libel laws apply. Otherwise the right
to state opinions under a pen name has been
generally recognized by the First Amendment, with
certain exceptions such as threats.
The parallel of a 'pen
name' is significant because Section 113 does not
merely extend traditional protections from an old
technology (phones) to a new one (the Internet).
The Web is more like publishing than
telecommunication. Phone calls are considered
one-on-one communications and so, as Volokh
comments, they are "rarely of very much First
Amendment value." By contrast, the Internet is
public speech. This fact alone makes Section 113
different in kind from 47 U.S.C. 223 and not merely
an extension of the same principle.
Moreover, "annoyance" and
"intent to annoy" are unconstitutionally vague
terms. By contrast, harassment seems well defined:
stalking, impersonating someone, threats, sending
viruses through email, libel, contacting a target's
family and co-workers. Critics of Section 113 are
**not** defending a 'right' to harass but the right
to be publicly annoying, which is no more than
freedom of speech.
As someone who runs
electronic Bulletin Boards, I've seen both
harassment and annoyance in practice. Annoyance is
when a churlish poster uses a screen name to flame
another member because of a comment on Iraq or
abortion. Harassment is what recently led to my
closing a BB; a member's real name was 'outed' and
his 'real life' was shadowed by threats. As it
stands, Section 113 makes no distinction between
childish and menacing behavior.
Interestingly, those who
argue against McCullagh do not necessarily argue
for Section 113. Rather, they point to the
irrelevance of the "annoyance" reference. Former
Justice Department prosecutor Orin Kerr
volokh.com/posts/chain_1136873535.shtml
states that the statute and VAWA amendment can only
be used to prohibit speech that is not protected by
the First Amendment. In short, free speech
protections still apply to the Internet.
Daniel Solove, associate
professor at the George Washington University Law
School, www.concurringopinions.com/archives/2006/01/annoy_someone_o.html#comments
maintains that an anti-anonymity provision will
apply only in cases when the annoyance is part of
harassment.
Others argue that Section
113 will not be applied outside of the context of
its title: "Preventing Cyberstalking." But those
who remember how the Racketeer Influenced and
Corrupt Organizations Act (RICO), originally
written to target organized crime, was eventually
used www.religioustolerance.org/abo_rico.htm
against pro-life groups in the 'abortion wars' will
not be reassured.
With experts and attorneys
already contradicting each other, two things seem
clear.
First, we will discover
what Section 113 truly means when someone
challenges the law. A candidate being mentioned on
the Internet is Annoy.com; the site offers a
"service by which people send www.annoy.com/postcards/
politically incorrect postcards without being
required to furnish their identity." The site owner
Clinton Fein has www.annoy.com/editorials/doc.html?DocumentID=100761
a history of "seeking declaratory and injunctive
relief" against the Communications Decency Act of
1996 through which "indecent" computer
communication that is intended to "annoy" was
criminalized. Fein www.annoy.com/sectionless/doc.html?DocumentID=100763
believes Section 113 "warrant[s] a
constitutional challenge."
Second, this is a hastily
written, bad law that was tacked onto a popular
bill. Section 113 may seek to protect against real
threats or violence but its language is so vague as
to endanger much broader political
discussion.
It illustrates why the
organization Downsize DC is promoting a
www.downsizedc.org/read_the_laws.shtml
"Read the Bills Act", which Act would require
Congressmen to read measures before voting on them.
It is sad that such a
commonsense goal sounds utopian.
©2009, Wendy
McElroy
* * *
Wendy
McElroy is the editor of ifeminists.com
and a research fellow for The Independent Institute
in Oakland, Calif. She is the author and editor of
many books and articles, including her latest book,
Liberty for Women: Freedom and Feminism in the
21st Century. She lives with her husband in
Canada. E-Mail.
Also, see her daily blog at www.zetetics.com/mac
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