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.”
of any person a crime, if done through the covered Internet devices. As
was predictable, there has been much squawking all around the blogiverse.
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-
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.”
There are a lot of open questions presented by this poorly-worded
and poorly-thought-through statute. McCullagh gives a much more balanced
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
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
content.
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
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
Thanksgiving Day
the emails come
with tunes
home alone
my own
silences
construction crew
the blackbird
relocates
party couple –
she doesn’t want me to say this,
he says
“T-Day” & “home alone” – (2004/I)
“construction crew” & “party couple” – (2002/II)
