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f/k/a archives . . . real opinions & real haiku

January 11, 2006

annoy-nymous blogging

Filed under: pre-06-2006 — David Giacalone @ 5:29 pm

I hope the unnamed Editor of Blawg Review has been following the 

discussion and debate regarding the new “Preventing Cyberstalking

provision of the federal telecommunications act.  It was signed into law

last week and, on its face, makes it a crime for an anonymous person

to utilize

“any device or software that can be used to originate …  

communications that are transmitted, in whole or in part,

by the Internet . .  with intent to annoy, abuse, threaten,

or harass any person … who receives the communications.”

[section 113 of the new statute, amending 47 U.S.C. 223]

black envelope


In brief, the new law appears to make anonymous, intentional annoyance 

of any person a crime, if done through the covered Internet devices. As

was predictable, there has been much squawking all around the blogiverse.

On Jan. 9, CNET’s Declan McCullagh shrieked: “Create an e-noyance, go

to jail.”  Although annoyed by the provision, Kurt at the EFF’s Deep Links

has a less stressful reaction (EFF strongly supports the right to post anony-

mously on weblogs)..  Prof. Orin Kerr at Volokh Conspiracy wants the blogi-

shpere to stop catastrophyzing; he points out that the provision cannot be

used against speech that is protected by the First Amendment.  His co-

Conspirator Eugene Volokh doesn’t think Kerr’s apporoach offers much

guidance to the public or to prosecutors, but is especially concerned over

taking a concept that was already shaky — banning annoying anonymous

communications that were one -to- one — and applying it to one -to- many

communications, such as websites. 


“The bottom line is that, even if it’s OK to punish speech that’s

likely to be annoying and offensive to its sole listener — on the

theory that such speech is unlikely to enlighten or edify, and likely

only to annoy — such restrictions shouldn’t be extended to speech

that has many listeners, many of whom might find the speech

valuable even though it’s annoying (perhaps deliberately so) to

some other listeners.”

bully  There are a lot of open questions presented by this poorly-worded

and poorly-thought-through statute.  McCullagh gives a much more balanced

account of the issues in his “FAQ: the new ‘annoy’ law explained.”  Many

worry that, until issues such as applicability to weblogs and to merely

irritating rather than abusive speech are settled, there will be great poten-

tial for prosecutors to use subpoenas to unmask anonymous internet

voices.  (see Deep Links


We at f/k/a don’t think it is very mature or courageous to attack or harass

someone anonymously.  Your Editor understands Prof. Volokh’s distinction

between one-on-one and one-to-many communications, but one-to-many

communication (which is public and available to all, especially Googlers)

certainly has a far greater capacity to annoy/embarrass and, if truly intended

to “annoy” a particular person or persons, may offer very little valuable



                                                                                                   watch step sign


Bottomline, though, we don’t believe a court would find criminal liability

for communication that is merely annoying (even though done in a

cowardly no-name fashion).  Of course, going through a trial and

appeal to learn that result would be quite troublesome for the defen-

dant.  It is ironic that a congress filled with so many “textualists” and

“literalists” — not to mention proponents of individual freedom and liberty —

 would come up with such bad policy that is so poorly drafted.   (Doesn’t

congress have any lawyers experienced in writing a statute?)




no Comment posted —

she won’t stop

leaving me alone




something I said?

the cricket’s

gone, too





black envelope



after her letter
no heart to open
    a bill

we bicker
all through the house
    … cleaning




to the cat:
“that’s complete and
utter nonsense”








she’s waited up …
to have some last words
with me





all through
his temper tantrum
her calm




 from Homework (2000)



Thanksgiving Day

the emails come

with tunes






home alone

my own




lawyer cellphone small


construction crew

the blackbird








party couple –

she doesn’t want me to say this,

he says



“T-Day” & “home alone” –  (2004/I)

“construction crew” & “party couple”  – (2002/II)




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