Monday, January 9, 2006
With Intent to Annoy
by CLINTON FEIN
 On today's C|Net, Declan McCullagh commented on congress' newly passed law, insidiously buried in the Violence Against Woman and Department of Justice Reauthorization Act, which criminalizes the sending of annoying email messages without disclosing your true identity.
Buried deep in the new law is Sec. 113, an innocuously titled bit called "Preventing Cyberstalking." It rewrites existing telephone harassment law to prohibit anyone from using the Internet "without disclosing his identity and with intent to annoy."
For the last nine years I have owned and run Annoy.com, which among other things contains a postcard service that allows people to send postcards without being required to furnish their identity. Not unlike most news organizations that allow you to use "Send to a friend" features to distribute their content and enable you to include a message (possibly an annoying one) or the United States Postal Service, which allows you to send any content (even annoying to some people) by simply requiring a stamp. No identity checks at the local corner post box. Yet.
On January 30, 1997, I filed a federal court action seeking declaratory and injunctive relief challenging the provisions of the Communications Decency Act (CDA) of 1996 that criminalize any "indecent" computer communication intended to "annoy" another person.
The Justice Department did not attempt to defend the provisions as written. Instead, Attorney General Reno argued that the statute did not criminalize "indecent" speech at all, only "obscene" material. She represented to the court numerous times that the Justice Department would not and could not prosecute ApolloMedia for communicating merely "indecent" material. She persuaded the three-judge court to adopt her statutory interpretation.
The government's argument - that was bought by both the Ninth Circuit and the by the United States Supreme Court to whom I appealed - was that the string of words indecent, lewd lascivious, filthy and obscene, all only meant obscene and that congress was not trying to criminalize indecent speech, even if it was annoying.
However, obscenity, which is not protected by the First Amendment, would remain unprotected, essentially rendering the intent provision useless. Obscenity is not protected regardless of whether intended to annoy or not.
Although this new law is not clear, it appears similar to how the Communications Decency Act broadened §223 beyond telephones to communications transmitted by computer, restricting a medium that is significantly less intrusive than the telephone. A ringing telephone intrudes into private space and carries the ability to harass or annoy even if no content is communicated, especially when the calls are repeated or come in the middle of the night. But computer communications are silent and, importantly, they are read only if the recipient chooses to read them.
It appears, with Sec. 113, that one is guilty of a crime if one were simply to "utilize" a telecommunications device "with intent to annoy" a person. Regardless of the content, or even in its absence. A conduct rather than a content crime. Perhaps waving a Blackberry in someone's face. Or annoying someone by using their cell phone as a vibrator.
Let's assume for a minute that the new law is based on not only conduct but speech as well. In 1973, the Supreme Court attempted to define obscenity in Miller v. California, 413 U.S. 15, 24 (1973), by establishing a three-part test for obscenity: "hard core" sexual material that appeals to the prurient interest; is patently offensive under community standards; and lacks serious literary or other value. Each of the three parts of the Miller test must be met to criminalize even obscene speech.
Assuming it was possible to actually define content as annoying (perhaps unanimous agreement by Rush Limbaugh and Al Franken) using a similar standard to Miller, how on earth do you decide whether, when or where a particular piece of content is annoying? Is it annoying in a particular community?
Perhaps an annoyingly erroneous news dispatch on the cover of the New York Post in Sago, West Virginia might be more annoying there than it would be to the poor person reading it as fact on the subway in Manhattan. And therefore, if someone chose to send the story anonymously to Rupert Murdoch, expressing their outrage, which community would decide the appropriate level of content annoyance to legitimize a federal lawsuit by Mr. Murdoch?
Further, assuming it was determined that the content was likely annoying enough to Mr. Murdoch in Manhattan, would the content become less annoying if Mr. Murdoch was to sip on a scotch, smoke a joint or pop a Xanax?
And what exactly constitutes the annoyance. Is it the fact the email was sent to him at home rather than the office? Or that it was sent by Ted Turner? Or whether the sender's intent was to gloat at Murdoch's mistakes, or communicate them in the hope he remedy them?
Like the difficulty inherent in defining the "prurient interest" part of the obscenity provision, the notion of annoyance lies within the eyes and mind of the beholder, not the content. Because I find Christmas songs annoying, doesn't mean the songs are annoying. It means I find them annoying. Similarly, that the recipient of an email is annoyed does not necessarily mean that the sender intended for the communication to be annoying, and would a felony be an appropriate punishment for someone who intended to annoy the recipient but was unsuccessful, instead making the recipient laugh?
Another huge problem with this legislation is that it fails to take into account the different types of electronic communications available. As McCullagh points out, you can flame someone on a mailing list or in a blog, so long as you do it under your real name.
Then there's enforcement. On June 17, 1999, I received an order entered by the Honorable Marcia A. Crone (Under 18 U.S.C. § 2703(D), a Texas magistrate, requiring me to produce records pertaining to the sender of certain email messages from Annoy.com's postcard service within three days, along with an order not to "disclose the existence of the United States' application or [the] order, or the existence of any investigation" to the sender of the email messages "or to any other person" until further order by the Court."
Essentially, I was being told to turn over the identity of people, for whom, as far as I knew, there was no evidence had committed any crime, who had sent communications using Annoy.com and who had a reasonable expectation that their communications were not being scrutinized by the government. And to shut up about it.
Even creepier, was the fact that the "privacy" argument the government used to impose the gag order on me, was to protect the identity of the alleged victim, although the victim and any information pertaining to her was under seal, inaccessible to me or anyone else.
Since I was unable release the identity of the sender with any degree of certainty, and was not prepared to release all of ApolloMedia's records, I could not comply, but turning the tables against the United States, sought to have the record unsealed to see if I, or Annoy.com, was under investigation, and to remove the overly broad and unconstitutional gag order, which represented an unconstitutional prior restraint.
Before their final defeat in oral argument before the U.S. Court of Appeals for the Fifth Circuit in New Orleans, the government sought to retain the gag insofar as it pertains to releasing the identity of the alleged victim in the criminal investigation that launched the case (which had been declared inactive by that stage). They also sought to prevent me from making mention of the institution - the University of Houston - involved in the unmasking of an anonymous identity and upon whose behest they supposedly were acting. They were unsuccessful. The record was unsealed and the gag order was removed.
With the help of my attorneys, my hard fought victory to prevent undue governmental secrecy while protecting and balancing both the public's right to know and an individual's privacy is one of which I am extremely proud.
The current legislation passed by congress is unconstitutionally vague and not worthy of the institutions and their members we elect to protect our constitutional freedoms. Although I am still assessing the future of Annoy.com's specific role in relation to this legislation, I remain committed to exercising the freedom for which we, and so many before us, have worked so hard to ensure.
Stay tuned.
Discuss this story on Annoy.coms Blog
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"Whoever...utilizes 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... without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person...who receives the communications...shall be fined under title 18 or imprisoned not more than two years, or both."
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