Being “annoying” online - now against the law.

    Do you post on blogs? Send jokes to colleagues? Say anything at all that might be construed by anyone as objectionable?

    Well, from now on you had better do it under your own name and not a pseudonym or there could be fines and/or jailtime in your future (read the Cnet article here). It seems that on January 6th of this year “president” Bush signed a law called the ‘Violence against Women and Department of Justice Reauthorization Act” which has an section embedded in it (section 113 to be precise) which is titled “Preventing Cyberstalking”. So far everything I have written here seems pretty innocuous, designed to keep women and girls from being stalked and harrassed by online predators, and I’m all for that.  If I had ANY trust in our current pro-torture, pro-spying, pro-empire, criticism averse administration I might not even bat an eye at this. But I don’t have any trust left.

    How do you define annoying? If I asked 10 people for specific examples of what annoys them I am willing to bet I would get 10 different answers. Something that I find annoying, like prosteletizing, might be sacrosanct to someone else – so who decides? Bush probably finds it annoying that his spy ring has been exposed.  I find it absolutely necessary and downright patriotic. Since the audiences for his townhall meetings are preselected I bet he finds surprise questions and contrary opinions annoying. I find them amusing.

    Because I always post my annoying opinions under my own name, Eric Paulsen, I am safe from fines and jail time (at least in theory), but… why make it necessary that an “annoying” post be under a persons real name and not a psuedonym? Why would an administration that was developing the Total Information Awareness database (an enormous datamining tool), that thinks it is okay to tap the phone calls and read the e-mails of American citizens, and is trying to give the Executive branch limitless powers (“If this were a dictatorship, it’d be a heck of a lot easier…just as long as I’m the dictator…” G. W. Bush—Washington, DC, Dec 18, 2000) want your real name attached to an “annoying” post. That’s a real puzzler there. Yup, a real puzzler.

    Well, here’s another post for my NSA file. cool hmm

36 thoughts on “Being “annoying” online - now against the law.

  1. Uh, I have some questions:

    Do we have to use our full names when we post from now on?

    Does it just involve posts or both posts and comments?

    Should Les update his Comment Guidelines to cover himself?

    Have I ever NOT annoyed someone with a post I made?

    Is Specter a dick or what and does anybody have his email address?

  2. Here’s a question, Eric: If all the freedom has been gobbled up by the Bush Regime, why is that you haven’t been jailed yet?

  3. Could be a big problem in cases like Bitch, PhD’s conflict with a commenter that appears headed for a lawsuit.

    Lyndon Johnson said (and he sould know) that one should consider how a law will be misused more carefully than its intended purpose.  This one will be misused all over the place.  Not to say that we don’t need some way of dealing with stalkers, cyber and otherwise.

    (Interesting that when I tried to post this comment with a link to Pharyngula’s story about Bitch, PhD, the link kicked back as ‘blacklisted’)

  4. Before everyone gets too bent out of shape here the folks over at Boing Boing have had several lawyer types responding to this same story saying it’s not what it seems.

    Reader comment: A government lawyer intimately familiar with the subject who requests anonymity (but whose identity is legit, and known to Boing Boing) sez,

      Your latest reader comment has it exactly right. The anonymous harassment provision ( Link ) is the old telephone-annoyance statute that has been on the books for decades. It was updated in the widely (and in many respects deservedly) ridiculed Communications Decency Act to include new technologies, and the cases make clear its applicability to Internet communications. See, e.g., ACLU v. Reno, 929 F. Supp. 824, 829 n.5 (E.D. Pa. 1996) (text here), aff’d, 521 U.S. 824 (1997). Unlike the indecency provisions of the CDA, this scope update was not invalidated in the courts and remains fully effective.

      In other words, the latest amendment, which supposedly adds Internet communications devices to the scope of the law, is meaningless surplusage.

    There’s additional lawyerly type comments more or less saying the same thing, but that pretty much sums it up right there.

  5. DOF:

    Les has it right.  Sometimes folks on the left are so prone to paranoia that they whip their heads around looking for the Republicans to screw them so violently they inadvertantly end up with their heads up their ass.  LOL

  6. What’s next, making fun of nicknames becomes an offense?

    Women aren’t the only ones being stalked on the internet.  Children get stalked more, if you don’t believe me, ask Michael.

  7. Phew, my mind is at ease. I’m sure everything will have the proper oversight, what was I thinking? Surely nobody has ever abused overly broad executive powers recently that I can think of.

    I mean while my head was whipping around imagining all of the absurd possibilities that could NEVER happen, I thought for the briefest of seconds about how a President could use the Patriot Act to justify an end run around the FISA court. But then I was whipping my head around when it came to that bit of legislation passing too imagining things like torture, indefinite incarceration, loss of civil liberties, spying on citizens, kidnapping for rendition to name a few. Well that WAS crazy wasn’t it? I’m glad none of that happened. Thank god there are grounded Republicans like Consigliere to talk me back down.

    Don’t worry a bit folks. I’m sure everything will be coming up roses if we just keep our eyes and mouths shut.

  8. Thanks for straightening me out, Eric.  I, too, was worried about the possible abuse of power.  Good thing we’ve got God in the White House.

  9. Sometimes folks on the left are so prone to paranoia that they whip their heads around looking for the Republicans to screw them

    It’s called ‘learned behavior’ wink  Just because you’re paranoid doesn’t mean they’re not out to get you.

    Watching Faux News the other day about DeLay’s stepping down as majority leader, I saw him and several Republicans say ‘it was best for the party’ and ‘doing what was good for the party’ over and over.  Conspicuously absent was what was good for the country.  But they did refer to several Democrats as their ‘enemies’.

  10. …I saw him and several Republicans say ‘it was best for the party’ and ‘doing what was good for the party’ over and over.  Conspicuously absent was what was good for the country.  But they did refer to several Democrats as their ‘enemies’.

    Wow – excellent notice, DoF.  I think that pretty much says it all about the nature of politics these days.  From either side of the aisle, though the republicans do seem to be the worst offenders.

  11. glad I’m Canadian, and just happen to keep a livejournal and have posted on Frappr and – oh wait, everyone already knows how to find me smile. Don’t count on me stopping balls-to-the-wall comments even if that law migrated north as the snow clears.

  12. Sometimes folks on the left are so prone to paranoia that they whip their heads around looking for the Republicans to screw them so violently they inadvertantly end up with their heads up their ass. 

    Whereas people on the right are never prone to paranoia or irrational fear-mongering at all. hmmm

  13. It is not only my analysis that says you were being silly Eric.  Try this one which saves me the time:

    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.

    Taken from Orrin Kerr’s post.  His bona fides are known and you can check them out yourself if you like. 

    I also think that you have misstated FISA violations.  To my knowledge the NYT has not reported any within its story, nor is there enough information for any objective person to conclusively state so.  There is much speculation about the NSA program, but frankly, I don’t know enough about the actual details of the program to even be able to do the analysis.  Nor do those with much keener legal minds than mine.  Only those who want to flame are claiming FISA violations.

  14. Since I post as ‘The Super’ at my blog and use my real name in comments, can I be accused of annoying someone when I post something critical on my blog?

    Well, free speech notwithstanding, the way I view this administration, I can be called a terrorist by George Bush, wiretapped, detained without trial, tortured or extraordinarily renditioned, deported to countries where ancestors came from, and audited by the IRS, who can attach my wages and grab property from me. I can also have my kids forced into the military – even without a draft – to fight illegal wars anywhere in the world. And if anyone suspects any oil in my body could be used as energy, they can drill my most private areas in pursuit of it, killing me if they must.

    As a result, the specifics of laws do not bother me at all, because Bush has the authority to break all laws and Christian Commandments simply because he said so, and no one has blocked him from doing so.

    Civil protections? Rights? Hah! Don’t make me laugh. In the Divided States of America (DSA), since the bloodless coup of 2000 eliminated the USA, there are no protections from state-sponsored attacks on me.

    Standing in front of a Bush tank on Tianemen Square means we’re likely to become pancakes. Whether they roll over me legally or illegally is thus irrelevant. The only way to proceed is with the conviction that enough of us have to stand up in the way to clog the tank treads with our protoplasm and halt the advance of the tyrants inside.

  15. Well Consigliere, if it is such an absurd law then I expect that it will be removed from the books right? I mean if it is unenforceable then surely we don’t need it on the books. Otherwise it’s like leaving a loaded gun around for the first monkey who decides to grab it.

    Why pass a law nobody is ever going to use?

  16. I didn’t mean to diminish the point you made. Of course, it’s important to notice such laws and fight them.

    I just meant to say that laws won’t stop the lawless. And bad laws do give tools to the lawless that they’ll likely misuse.

  17. Well Consigliere, if it is such an absurd law then I expect that it will be removed from the books right? I mean if it is unenforceable then surely we don’t need it on the books. Otherwise it’s like leaving a loaded gun around for the first monkey who decides to grab it.

    Why pass a law nobody is ever going to use?

    Congress does lots of silly things.  So do city councils, county commissioners, school boards, and administrative agencies.  Any arm of the government that can write legislation or has the power to write regulations to enact the legislation will do the inane. 

    My point is mainly that we should ridicule them for not writing good laws that are consitutional en toto.  They deserve such cajoling.  Stupidity does not equal a black heart though.

    On the by and by, I noticed that you edited the initial post to retract the FISA statements in the comments section.  Had you let it stand, it would allow the readers to more fully understand my comments.  By retracting them in the initial post, you allow for quite a bit of ambiguity to exist in the reader’s minds as to what the hell I am talking about.  Nonetheless, I don’t abscribe that to you as your intent.  I view it as you wanting your post to not contain any misstatements. So I say simply, thank you.

  18. Since I lack the ability to edit my posts the following change should be made above:

    On the by and by, I noticed that you edited the initial post to retract the FISA statements in the comments section.

    Should read as:

    On the by and by, I noticed that you edited the initial post to retract the FISA statements.

  19. Congress certainly does do a lot of silly things, but it does not automatically follow that we should not occasionally pay attention when it enacts questionable legislation, even when said legislation is unenforceable. If nothing else, it may simply be another symptom of Bush’s displaying what he considers to be his balls (i.e. calls for increased executive authority); I, for one, find this continuing behavior from our Commander and Chief to be at least frustrating and irritating, if not an outright call for alarm.

  20. Sadie, I agree with the premise of your post-Pay attention.  However, that is not what Eric said.  Eric started screaming “WOLF!!! WOLF!!!”  As I pointed out, and am in damn good company, screaming wolf doesn’t make sense when one knows the backdrop for how this was enacted and the existing case law.  Eric knew neither. 

    What he did was something that gets my ire up when either conservatives or liberals do it. He took something he read on the internet and ran with it spinning wildly about how this makes his point.  There was no analysis of the actual law.  There was absolutely nothing of substance there.  Nothing. Just Eric spinning, and spinning, and spinning.  Not only that, but I doubt Eric could do the legal analysis for it if we asked him to. So, he is not only spinning in circles, he is spinning in an area that he knows very little about.

    When someone is being silly, as Eric was, I thought that the whole purpose of this blog was to call them on it and ask: What the fuck is wrong with you people?  So I did.

    If nothing else, it may simply be another symptom of Bush’s displaying what he considers to be his balls (i.e. calls for increased executive authority); I, for one, find this continuing behavior from our Commander and Chief to be at least frustrating and irritating, if not an outright call for alarm.

    I would take issue with Congress myself.  I would do this primarily because under our Constitution it is vested with, oh say such things as writing this piece of legislation.

  21. Consi, your comments about Wolf-crying and such are well-taken.  I do take issue with one thing you said, though:

    Stupidity does not equal a black heart though.

    Any sufficiently advance stupidity is indistinguishable from malice.  At the very least, stupidity opens opportunities for those who do have bad intentions.

  22. On the by and by, I noticed that you edited the initial post to retract the FISA statements. – Consigliere

    I am confused because I did no such thing. I only EVER edit my posts for spelling or grammar, believe me when I say that there is one post attributed to me on this site that I wanted to remove because I was repeating an urban legend (Les caught it to my chagrin). I left it alone to remind myself to check my sources, and not to get too full of myself. I am not seeing the edit but I assure you that I do not and will not edit a post to change the meaning of it.

    Not only that, but I doubt Eric could do the legal analysis for it if we asked him to. – Consigliere

    Well you would win that bet, I’m no lawyer. But you don’t have to be a meteoroligist to know that rain is wet either. For you to say that only a lawyer can speak to or be concerned about the direction of the law seems to me to be like saying that only snowmen can have an opinion regarding the right consistency for packing snow used in their construction. While you almost certainly have a deeper understanding of the law than I do the one thing you have yet to assuage is my suspicion that a law written will become a law used. It is laziness to just wave a dismissive hand and say that there are LOTS of bad laws on the books like that is some kind of talisman against abuse. I refer you to my monkey/loaded gun analogy in an earlier post.

    If an infinite number of litigators scrutinize an infinite number of laws looking for a valid reason to sue someone, ultimately even a bad law will be used.

  23. I am confused because I did no such thing.

    Eric, I owe you an apology for making the statement about the edit. I thought I read the FISA allegation in the initial post, and when I reread your initial post today it was not there.  I thought you edited your initial post.  The fact is, it was your second post when you made the FISA allegation. 

    I was wrong to not have double checked your other posts before making such a statement. My deepest apologies for the misstatement.

  24. No problem. I kind of thought that might be the case, but I figured that it was always possible Les might have made the change. Not likely, just possible.

  25. Not to be overly ‘doomsayerish’ but I think we’re forgetting a couple things.  First, that one law covering both telephones and the internet will create loopholes and pitfalls that we can’t guess now.  Why? because the internet is NOT a telephone.

    The second thing is that Bush is one confirmation away from gaining a majority opinion in the supreme court.  I don’t know about you, but that does NOT fill me with warm fuzzies.

    Sure, this teeny little tweak to an existing law might not seem like much, but that doesn’t mean something big and nasty wont be created by it.  I’m sure we haven’t heard the last of this issue.  I keep waiting for a ‘longbow’ law, something that no one would dare enforce but that technically could make anyone a criminal, make us all guilty until proven innocent so the government can side-step our rights while the courts try to straighten things out (if they can).  I may not download mp3s without paying for them or cheat on my taxes, but if it becomes even questionable to express my opinion in places like this…. Who in this country that surfs the internet can say that they don’t do it?  The police can arrest me and charge me and I’m their puppy until a judge says I can go home even if it will only take a lawyer who barely passed the bar to do it.  If that ‘questionable’ speech I was invloved with happens to include my opinion of the government, then while I’m waiting for due process to free me from a technicality, Homeland Security can swoop down and say “We’ll take it from here.” It wont matter that my innocence is all but certain and the charge wont survive a jury.  It only matters that I was charged with a crime and the government says it MAY relate to terrorism, and you might not see me for some time, or even be allowed to tell anyone what is happening to me.  This might not be the law that makes it all possible, but it sure takes us in that direction, all in the name of ‘clarifying existing law”  Whether stupidity or malice created it doesn’t matter.  I’d rather not be clarified right into jail, thank you very much.

      It’s not going to happen with this administration.  I’m not afraid of Bush.  Everyone is watching him and if he pushes too much, the public will push back.  We are not going to get a police state out of him.  What bothers me is that the public wont push back because he wont go too far.  At worst, Bush is the ram to knock down the door.  What I’m worried about is ten years down the road, some less than savory president (Cheney?) that got into office using a Diebold machine could use all the crap that Bush and Co have scattered around (accidentally or on purpose) for genuine evil, because if it happens then, we may not get the chance to say “Now hold on a minute” Even Hitler was a popular politician before he became a dictator.  I’d rather not roll those dice.

  26. if it happens then, we may not get the chance to say “Now hold on a minute”

    This is our chance to say ‘now hold on a minute’ and we’re branded as unpatriotic for saying it.  (If anyone doubts this, surf some conservative blogs)

  27. Just to add fuel to the fire, here’s another article from the folks at ArsTechnica on why this probably isn’t the big problem it first appears to be:

    So, given that “annoy” has a higher bar than its everyday meaning, and given that it was already possible to try and do a hatchet job on someone online posting their opinions, what does this law really add to the situation? Without a doubt, the statute is extremely vague and confusing, and some interpretations would give it a meaning so broad as to be unconstitutional. But that’s where the intent qualification comes in: there has to be an appearance that someone is trying to be malicious to achieve a negative end. Could this law be used for abuse? Sure, but then, so are so many laws (the DMCA comes to mind). But I think it’s not quite accurate to say that forum posts and blogs are going to come under fire if someone finds them “annoying.”

    If I could boil my reading down to a few sentences, it would be as follows: the statute makes it illegal to send communications with the intent to “annoy,” when those communications are sent anonymously. Previously, it was already illegal to attempt to annoy others with telecommunications services, anonymous or not. Now anonymity is explicitly addressed, but incidental annoyance is still not the same thing as intentional annoyance, which often requires a pattern of abuse to establish (since it is often otherwise very difficult to establish someone’s state of mind when engaging in a particular behavior). Yet this has been illegal for some time. In fact, this entire amendment to the statute is only updating a rather old prohibition against malicious telephone usage.

    In a phrase: the more things change, the more they stay the same. Why add this language then? That’s a good question, and if I had to guess, I would say that this looks like a rather lame attempt to address the burgeoning VoIP world, which will soon include all instant messaging clients supporting making calls to Plain Old Telephone Service (POTS). But this bill does not make anonymity illegal, nor does it make everyday annoyance illegal. 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.

    So there ya go. More bone to chew on.

  28. Could this law be used for abuse? Sure, but then, so are so many laws (the DMCA comes to mind). But I think it’s not quite accurate to say that forum posts and blogs are going to come under fire if someone finds them “annoying.”

    I have two problems with this statement.  First: using the DMCA in that example is like saying “Can a gun hurt you?  Sure, but so can a cannon.”  The existence of one bad law should not be used as justification for another.  I consider the DMCA an ‘evil’ law.  It does nothing new except make you a criminal if you try to figure out how the hardware or software you buy works.  The DMCA should never have become law BECAUSE of how it can and has been abused (although many of the laws allies don’t consider much of what has happened ‘abuse’ )  and neither should this law.  I don’t see the good that can come out of this clarification.  At least nothing that justifies the danger it also introduces.  Second, it’s not all about the definiton of ‘annoy’ as it applies to this law.  We do not use a phone to regularly engage in conference calls where the participants hurl insults at each other and call it ‘fun’.  The internet is used that way.  There is a much greater chance of someone trying to abuse this law with respect to the internet than they would for a phone conversation, and regardless of the president we have set with phones, as we have seen so many times in the past, lawyers often argue from the point of view that the internet is unique.  Although that is essentially correct, considering the arguments they are usually trying to promote, they are successful more often than I am comfortable with.

      Also, as implied in my last comment; I don’t trust the government, but that goes without saying.

  29. I don’t think it is possible for this law to be abused. Clearly, it’s original intent is to be able to jail arbitrary people for arbitrary reasons. How could that be abused? By not jailing someone who has done nothing wrong? I mean, really.

  30. I don’t think it is possible for this law to be abused. Clearly, it’s original intent is to be able to jail arbitrary people for arbitrary reasons. How could that be abused? By not jailing someone who has done nothing wrong? I mean, really.

    If they say the law is made to punish a certain type of person, and when it becomes law it is used to punish other types of people, especially when they say “That will never happen”  That is abuse.  The DMCA circumvented fair use, but when it was put in place, the government assured us that it would not be used to go after people who were simply trying to use a product they legally purchased.  After the law was enacted, we had the DVD Jon case.  They lied.

    I think this law is pretty much the same.  I read the text and think to myself “That sounds kinda vague.”  Now I hear people saying “Oh that wont happen.”  I don’t know weather I should laugh or cry.

  31. Bob: I don’t think it is possible for this law to be abused. Clearly, it’s original intent is to be able to jail arbitrary people for arbitrary reasons. How could that be abused? By not jailing someone who has done nothing wrong? I mean, really.

    No one could say that with a straight face. wink
    I’m almost convinced that Bob’s having a lend of us.

    Sword: I don’t know weather I should laugh or cry.

    I’m told that laughing is better for you (us). LOL

  32. I’m almost convinced that Bob’s having a lend of us.

    I thought that too, but it was a excuse to follow up what I said earlier smile  We can only hope he was smiling when he posted smile

  33. I remember when this was a topic of conversation.  I immediately wrote an incredibly annoying blog article about it – under a pseudonym, of course – in response.  LOL

    It is true that this does not apply to making smartassed remarks on the internet (thank goodness, because otherwise I’d probably get the death penalty).  However, the people who are the subject of my smartassed remarks invariably believe I am wrong about that.  Go figure. wink

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