How annoying is antistalking law?

New law makes annoying VoIP calls - not Web posting - illegal. Is there a problem here?

Declan reported earlier this week about a change to an antistalking law (buried in the Dept of Justice appropriations) that bans anonymous, annoying "communications over the Internet." But is it all its cracked up to be? Is any Internet annoying behavior now criminalized? And it that case, as one ZD poster, said doesn't that mean that everyone who creates pop-up ads are on their way to jail?

Apparently not, Wendy Seltzer, of Harvard's Berkman Center, reports in an email. The law exempts "Interactive computer services," i.e., the Web, email, Usenet, etc. It seem to be addressing fairly narrowly, VoIP. Here's Wendy

I think many of the stories so far have
overlooked a couple of points, and there may be
less to this amendment than meets the eye.  Most
important, the definition section being amended
here already excludes communication through most
Internet services in an earlier section, not changed by the amendment.

The entire statutory provision may still be vague
and wrongheaded (I'd venture that "annoy" is
unconstitutionally vague pre- or post-amendment),
but the amendment does not appear to change the
statute's scope substantially.   Before and
after, the statute prohibits one-to-one
harassment, not anonymous commentary on blogs or newsgroups.

Others have suggested we don't need to worry
because prosecutors wouldn't bring criminal
charges against speech protected by the First
Amendment, but the First Amendment is also
concerned with the chilling effects vague laws
can have on protected speech.  If people refrain
from lawful speech because they're afraid it
might violate the letter of a statute they don't
know is unconstitutional, they have been harmed
by a restriction on speech even before the prosecutors get involved.

A bit more detailed analysis of the amendment:

47 U.S.C. 223 (h) Definitions
For purposes of this section­
(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.
(2) The term “interactive computer service” has
the meaning provided in section 230 (f)(2) of
this title. [47 U.S.C. 230(f)(2): 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. ]

The amendment adds (h)(1)(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 (as such term
is defined in section 1104 of the Internet Tax
Freedom Act (47 U.S.C. 151 note))."

 From my Berkman colleague Tim Armstrong's blog
>While adding the new subparagraph (C) ... the
>bill did not modify subparagraph (B), which
>expressly excludes any "interactive computer
>service" from the definition of
>"telecommunications device."  In other words,
>reading the definition provision together with
>the previously quoted section defining the
>offense, it remains legal (just as it was before
>the new statute was passed) to annoy somebody
>through an "interactive computer service."
>So what does the new statute cover?  We know
>that, legally, Congress isn't presumed to have
>used words superfluously.  Is there something
>that is a "device or software that can be used
>to originate telecommunications" but doesn't
>fall within the meaning of "interactive computer service"?
>How about this: VOIP phones.  That is to say,
>the amendment clarifies that you can't use a
>VOIP phone to make the sort of prank call that
>has long been illegal.  This construction of the
>new statute would fit particularly well with the
>other subparagraphs of Section 223(a)(1), all of
>which refer generally to telephony and the kinds
>of things you can't do with telephones.  Because
>we're dealing with a criminal statute, the rule
>of lenity would also come into play­that is to
>say, you can't prosecute somebody for something
>that is not clearly and expressly prohibited
>under the law.  Given that there is a reasonable
>construction that limits the scope of the new
>subparagraph (C) to a technology that is outside
>the statutory exclusion of subparagraph (B) and
>fits better with the other types of conduct that
>are prohibited under Section 223(a)(1), it seems
>to me that there is a pretty good argument that,
>all the hoopla notwithstanding, there's no particular cause for alarm here.


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