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Cassius

From: http://news.com.com/Create+an+e-anno...3-6022491.html

Perspective: Create an e-annoyance, go to jail
By Declan McCullagh
Published: January 9, 2006, 4:00 AM PST

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."

To grease the rails for this idea, Sen. Arlen Specter, a Pennsylvania Republican, and the section's other sponsors slipped it into an unrelated, must-pass bill to fund the Department of Justice. The plan: to make it politically infeasible for politicians to oppose the measure.

The tactic worked. The bill cleared the House of Representatives by voice vote, and the Senate unanimously approved it Dec. 16.

There's an interesting side note. An earlier version that the House approved in September had radically different wording. It was reasonable by comparison, and criminalized only using an "interactive computer service" to cause someone "substantial emotional harm."

That kind of prohibition might make sense. But why should merely annoying someone be illegal?

There are perfectly legitimate reasons to set up a Web site or write something incendiary without telling everyone exactly who you are.

Think about it: A woman fired by a manager who demanded sexual favors wants to blog about it without divulging her full name. An aspiring pundit hopes to set up the next Suck.com. A frustrated citizen wants to send e-mail describing corruption in local government without worrying about reprisals.

In each of those three cases, someone's probably going to be annoyed. That's enough to make the action a crime. (The Justice Department won't file charges in every case, of course, but trusting prosecutorial discretion is hardly reassuring.)

Clinton Fein, a San Francisco resident who runs the Annoy.com site, says a feature permitting visitors to send obnoxious and profane postcards through e-mail could be imperiled.

"Who decides what's annoying? That's the ultimate question," Fein said. He added: "If you send an annoying message via the United States Post Office, do you have to reveal your identity?"

Fein once sued to overturn part of the Communications Decency Act that outlawed transmitting indecent material "with intent to annoy." But the courts ruled the law applied only to obscene material, so Annoy.com didn't have to worry.

"I'm certainly not going to close the site down," Fein said on Friday. "I would fight it on First Amendment grounds."

He's right. Our esteemed politicians can't seem to grasp this simple point, but the First Amendment protects our right to write something that annoys someone else.

It even shields our right to do it anonymously. U.S. Supreme Court Justice Clarence Thomas defended this principle magnificently in a 1995 case involving an Ohio woman who was punished for distributing anonymous political pamphlets.

If President Bush truly believed in the principle of limited government (it is in his official bio), he'd realize that the law he signed cannot be squared with the Constitution he swore to uphold.

And then he'd repeat what President Clinton did a decade ago when he felt compelled to sign a massive telecommunications law. Clinton realized that the section of the law punishing abortion-related material on the Internet was unconstitutional, and he directed the Justice Department not to enforce it.

Bush has the chance to show his respect for what he calls Americans' personal freedoms. Now we'll see if the president rises to the occasion.

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Here's the relevent details of the new federal law:

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Niteshift

Not only is the word "annoy" problematic, but there is another part equally as problematic.........proving intent.

Can you prove my intent is to annoy? Or am I just an a-hole who is unable to effectively communicate?

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Sometimes the light at the end of the tunnel is muzzle flash.

Buzzby

I predict that the first time someone is prosecuted under this law it will end up being declared unconstitutional because of First Amendment protections.

I'm sure the British considered Thomas Paine to be kind of "annoying".

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king cola

If someone receives an annoyin email without the person who sent it using their name, how can they accuse that person even if they know where the email was originally sent from? The accused person can always say that they weren't even on their computer when it happend and that maybe one of their friends or someone else sent it.

I hate gettin junk emails too but it happens. I found that crackers, not hackers, crackers have sent me bullsh*t emails in the past accusin me of somethin i didn't do. They would write things like, don't send me this again or send me that again or i'm reporting you to such and such internet provider. What this did was tricked me into writing back to them questioning what i did because i never even wrote to them. Then they were able to get my IP address from the email, then they broke into my email later and sent out a bunch of pornogrphy from my email which got me kicked offline until i called the service provider and they told me why i couldn't log on. They told me i was sending out pornography which was a bunch of sh*t, i explained what had happend with getting a email and responding back. They told me that's why they broke into my account. They told me what time everything was sent from my email and i wasn't even online.

When i was able to connect back online again after talking to the service provider, i checked my out going emails which should have been empty and there was hundreds of pornography that was sent out from it. The person or person's repsonsible for that should be the ones who get jail time. If someone sends a email not meant to be annoyin, that's different. Atleast i learned not to respond to a email if i don't know who sent it so this way they won't get my IP address. What about other people who might be tricked into responding to a email from someone they don't know, then they get your IP and break into your email later on and send a bunch of annoyin stuff to people? You could be inoccent and then charged with a federal crime.

Cassius

I predict you're right. But what does it say about our legislative system if such laws can be passed by both Congress and the President? What does it say if such laws have to be declared unconstitutional because they were ratified in the first place?

Shouldn't we have a system that doesn't depend on the Judiciary? Isn't that the point of checks and balances, that as little as possible should be dependent on any one branch?

 

Niteshift

I agree, it probably won't withstand judicial scrutiny.

Defining annoying will be a real problem. That will be the first thing to be declared unconstitutionally vague.

MickityMike

Heh, I'm gonna go ahead and guess... "Nothing good!"

Anyhoo, in the spirit of the Boston Tea Party and the civil disobedience of the Civil Rights Struggle, I say:

Screw you guys, screw you guys, screw you guys, screw you guys, screw you guys, screw you guys, screw you guys, screw you guys, screw you guys, screw you guys, screw you guys, screw you guys, screw you guys, Screw. You. Guys!

There. That should be plenty annoying, and wait for it... MickityMike is not my real name!

Who among you will stand, stand with me when The Man comes to get me? Who will stand???!

...Guys? Someone stand - please?

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Buzzby

I found that very annoying! You're goin' down, dude! What's the FCC hotline number? Of course, first I have to find you...

You might find this interesting: FAQ: The new 'annoy' law explained

Cassius

I'll stand with ya Mike =)

They keep talking about trusting prosecutorial discretion. I'm saddened by the fact that we, as a country, are so reliant on judicial discretion regarding unconstitutional laws.

I think the founding fathers intended for the checks and balances between the three branches to be a back-up in case the internal checks and balances of any one of the branches were to fail. Meaning, I don't think the founding fathers wanted a system where legislators could enact any old law they felt like, and it was dependent upon the judicial system to keep the laws within reason. I think they envisioned a system wherein legislators would have some checks and balances themselves so that they would only enact just laws, but that "as a back-up" the judicial system would be there to cover in case that system failed.

I think that the proliferance of ridiculous laws on the books and in the works (we get more everyday like this one) indicates that that system HAS failed. The two-party system and the other checks and balances designed to pit Senator against Senator and Congresswoman against Congresswoman obviously aren't working any longer, because the only thing that seems to be blocked (and thank God at least THAT is still happening) are extremist appointments to the Supreme Court and other courts. But within Congress itself, I sometimes wonder why none of our elected representatives stand up and say something when ridiculous laws like this are proposed?

Oh, that's right, they can't because they attached this ridiculous law to a huge bill covering so many issues that it would be political suicide to oppose it.

Our system is failing, gentlemen. 200 years and it feels like we're dangling by a thread -- especially when you consider the fact that one party controls the executive and legislative branches. Fortunately for us, it's likely that before they can assume control of the judicial branch, the President will be constitutionally prevented from serving another term, and just by odds alone it is likely that the scales will be tipped the other way during the next elections in either the legislative or the executive branches, or both. But what happens the next time this occurs, what if they ALREADY have a large conservative majority on the Supreme Court? Whether it's 2020 or 2100, it's like that this situation will occur again, and with enough time (we've had 200 years already and we've seen 2 of the branches controlled by a single party) it's almost a certainty that we will encounter a situation in which one party controls all three branches. What then?

dedbr

this is simply another attempt by the government to catch up with an "annoying" appliance, the internet.
This really does read like the telephone harrassment law at first glance, but as usual,a bunch of lawyer's have passed a law that another bunch of lawyer's will have to go thru two year's of courtroom antic's to get the wording just exactly right.

I think that in the future,we may be asked to kick off the anonymity that we have with screen names and register as we do with telephone's. I suppose we will still be able to use unavailable or anonymous as our dial in option, but the area's of accessibility will be limited unless they can identify you by name and I.D. number.
China simply refuses it's citizens to access some sites,but they realize that they made a mistake when they absorbed Hong Kong without jackbooting the whole city. Too much free,free,free press and new's access. It's much easier to subjugate the ignorant and uninformned.

Deddy

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