Damn DrFrige is going to be a LONELY guy here on Arfcom.....

Quoted: Damn DrFrige is going to be a LONELY guy here on Arfcom.....

You're just happy Jimmy doesn't have an account here....

Annoy Away. Just Put It In Writing.
by Cal Lanier
January 10, 2006

Jeff Jarvis and others are upset about a News.com story declaring that President Bush made it a crime to write annoying comments on the internet. But perhaps the ranters didn't read the source material.

Section 113 of the Violence Against Women Act adds a parameter to the telephone harassment law's definition of "telecommunications device": include any device or software that can be used to originate telecommunications or other types of communications.

The definition already excludes "an interactive computer service", defined as any information service, system, or access software provider, which should eliminate Internet postings from consideration, unless I'm missing something.

Here's the important part of the new definition: includes any device or software that can be used to originate telecommunications .

If that doesn't ring a bell, you probably aren't familiar with the battle to define VOIP (voice over internet protocol). The previous law assumed that all phone calls would be made via a "telecommunications service" using a "telecommunications device". The FCC has consistently found that VOIP is an unregulated "information service", thus exempting it from all sorts of fees and services. A VOIP call may be functionally indistinguishable from a landline or cell phone call. Legally, though, it's not a telecommunications service and doesn't require the use of a telecommunications device. Adding the new text to the definition removes a potential loophole and ensures that VOIP calls will be treated just as any other telephone call.

Orin Kerr and others have come up with various legal reasons not to worry, and I take their word for it. But I'm reasonably positive that the real purpose of this change is to ensure that VOIP services can't be used to avoid the law's intent. This summary from Senator Domenici's office supports that interpretation:

To strengthen stalking prosecution tools, this section expands the definition of a telecommunications device to include any device or software that uses the Internet and possible Internet technologies such as voice over internet services.

Just as well, really, because the Violence Against Women Act is extremely annoying and I want to be able to say so.


www.footballfansfortruth.us/archives/001318.html

By Orin Kerr at the Volokh Conspiracy:

A Skeptical Look at "Create an E-annoyance, Go to Jail":

Declan McCullagh has penned a column that is custom-designed to race around the blogosphere. It begins:

     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."

 This is just the perfect blogosphere story, isn't it? It combines threats to bloggers with government incompetence and Big Brother, all wrapped up and tied togther with a little bow. Unsurprisingly, a lot of bloggers are taking the bait.

 Skeptical readers will be shocked, shocked to know that the truth is quite different. First, a little background. The new law amends 47 U.S.C. 223, the telecommunications harassment statute that goes back to the Communications Act of 1934. For a long time, Section 223 has had a provision prohibiting anonymous harassing speech using a telephone. 47 U.S.C. 223(a)(1)(C) states that

   [whoever] makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications . . . shall be [punished].

 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.



volokh.com/admin/trackbackdrum.pl?post=1136873535

Intresting clarifications provided by the last two posts.  The trouble is, the Act, if indeed it is directed against VOIP is like the proverbial camel's nose in the tent.  VOIP is INTERNET, is it not?

Fucking retarded.  George Bush just lost ALL respect in my eyes.  His useless ass can't leave office too soon.

This thread annoys me.

I'm not too worried about the requirement for real name identification. I have always believed that one should stand by one's posts, even on the 'Net. That's why I always initial my posts. My initials, my name, my opinion.

NTM

Quoted: Intresting clarifications provided by the last two posts.  The trouble is, the Act, if indeed it is directed against VOIP is like the proverbial camel's nose in the tent.  VOIP is INTERNET, is it not?

As it pertains to residential applications, usually. As it applies to enterprise implementations, not really.

Quoted: Fucking retarded.  George Bush just lost ALL respect in my eyes.  His useless ass can't leave office too soon.

Yes, your post is fucking retarded.  Have you not READ any of the posts since the first?

I'll be wanting to pess charges on everyone over at PITA and DU.

HIVEMIND
HIVEMIND
HIVEMIND
HIVEMIND
HIVEMIND

MUHAHAHAHAHAHAHAHAHA

Quoted: Quoted: Fucking retarded.  George Bush just lost ALL respect in my eyes.  His useless ass can't leave office too soon. Yes, your post is fucking retarded.  Have you not READ any of the posts since the first?

Exactly what since the first post makes this law any better, Rik?

Is this a good law? Are we better off or more free because of it?

tag

Quoted: Quoted: Intresting clarifications provided by the last two posts.  The trouble is, the Act, if indeed it is directed against VOIP is like the proverbial camel's nose in the tent.  VOIP is INTERNET, is it not? As it pertains to residential applications, usually. As it applies to enterprise implementations, not really.

Actually, I was not even trying to split hairs to that extent.  In my view, though the act as currently stated, is just a modification of a prohibition of certain activities over the telephone, the introduction of an "internet element" in it leaves the door open for future incursions by government into the internet.  All one would need is an activist judge who will point to the inernet aspects and, ta daaaa...    Look at Judge Alito:  he may be against a ruling simply because it does not fall mechanically within a certain part of the law; but he'll be perfectly happy to provide the consultation and advice as to what provision to use to make it stick.

Quoted: Quoted: Quoted: Fucking retarded.  George Bush just lost ALL respect in my eyes.  His useless ass can't leave office too soon. Yes, your post is fucking retarded.  Have you not READ any of the posts since the first? Exactly what since the first post makes this law any better, Rik? Is this a good law? Are we better off or more free because of it?

It's not that it's a good law especially, it's that it's not a NEW LAW.  The "annoy" part of the law has existed for decades.  All this does is add internet telephony to an already existing law.  Blaming the "annoy" part of the law on President Bush is idiotic.

So could a forum like arfcom just have a clause when you click "I agree" when signing up that says you waive this right to be protected from annoying people?

Like when you go on some privvate property they can be allowed to search your shit.

Quoted: I'm not too worried about the requirement for real name identification. I have always believed that one should stand by one's posts, even on the 'Net. That's why I always initial my posts. My initials, my name, my opinion. NTM

I'm glad you posted that. I've always wondered why some people sign their posts (normally with their screen name) when it's already clear who's posting.

They have to prove "intent."  Like holding someone accountable for civil rights violations require that it be proved that it was the individuals intent to violate civil rights.

I think it is a load of horse shit, it has not been on CNN or any of the other credible news sources.

Quoted: I think it is a load of horse shit, it has not been on CNN or any of the other credible news sources.

That's what bothers me.  Seems a bit sneaky.

This is not nearly as crazy as it first sounds. See here:
volokh.com/archives/archive_2006_01_08-2006_01_14.shtml#1136873535

Basically, this statute only applies to speech that is not protected by the 1st Amendment. You can't be successfully prosecuted for doing anything consistent with the 1st Amendment, regardless of how over-reaching the text seems.

Quoted: I believe that the point of the legislation was to eliminate forms of harassment that are now possible by the advent of the internet age. As to how this law will be applied, one must examine the full legisltation and the definitions set out in the legislation to determine what "annoy" and the other terms mean, as those are usually spelled out within the law. Now when it comes to application of the language to real cases, that may be a completely different matter.

That's exactly the problem.  Lawmakers purposely leave their definitions vague and expect the courts to define what was meant by them.

There was a recent bill introduced in New Hampshire (I think, correct me if I'm wrong) that would make it a crime to "harass" a breast-feeding mother in a public place.  The legislation failed to clearly define what constitutes harassment.  When asked "what constitutes harassment in this bill" by a talk-radio host (Dom Giordano in Philly) the lawmaker who introduced the bill replied "That's for the courts to decide."  

I was listening to this on the radio, and my head almost exploded!

what if the "victim's" ID is hidden?
BS law
going to be hard to enforce without a ton of warrants getting webservers to give up IPs, then the ISPs to give up the name of the person logged into that IP at that time

another thing, just disclose a fake name when someone in a forum demands your name

That SYSTEM MESSAGE person pisses me off.  I'm calling the Feds.

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ARE YA'LL ANNOYED YET?!?!

About 330 posts ago...........