January 9, 2006 | By Kurt Opsahl

Here We Go Again: Law Attempts To Limit Anonymous Online Speech

Last week, the Violence Against Women and Department of Justice Reauthorization Act of 2005 was signed into law and a blow was struck against free speech on the Internet. VAWDOJRA is a complex bill, covering a wide variety of topics, but one subsection received little attention: Section 113. Dubbed "Preventing Cyberstalking," Section 113 amends the telecommunication act's prohibitions on anonymous annoyance over the telephone to include "any device or software that can be used to originate ... communications that are transmitted, in whole or in part, by the Internet." Such as, for example, your modem.

Arguably, this is not a change in the law. The Communications Decency Act added the term "telecommunications device" to the statute (which had regulated telephones for years before), and courts have interpreted this to mean a modem (and therefore it would apply to Internet speech).

However, when that statute, as modified by the CDA, was challenged in ApolloMEDIA Corp. v. Reno, 19 F. Supp. 2d 1081. (ND Cal. 1998) (aff'd 526 US 1061 (1999)), the court interpreted the challenged section (subsection (a)(1)(A)(ii)) to apply only to obscene speech, not to "indecent" communications made "with an intent to annoy" (as written in the statute). (More on case from Annoy.com)

The provision here (subsection (a)(1)(C)) is different - it speaks neither of indecent nor obscene speech, and was thus not directly affected by ApolloMEDIA. Nevertheless, a court considering this provision may also be guided to find a reading of the revised law that will comport with the First Amendment.

More after jump...

It is well-settled that the U.S. First Amendment shelters the right to speak anonymously. As the Supreme Court has held, ?Anonymity is a shield from the tyranny of the majority,? that ?exemplifies the purpose? of the First Amendment: ?to protect unpopular individuals from retaliation ... at the hand of an intolerant society.? Accordingly, courts have routinely found that the constitutional right to speak anonymously must be carefully safeguarded.

There are already laws on the books that prohibit harassment, and one can use subpoenas -- with judicial oversight -- to unmask anonymous speakers that violate the law. There is no need to criminalize the very act of communicating anonymously, even if the recipient will annoyed by the communication.

The problem here is that the law is far too vague: it purports to prohibit "utilizing" your modem "with intent to annoy, abuse, threaten, or harass any person ... who receives the communications" - on pain of up to two years in the slammer. 47 U.S.C. 223. Prior versions of the bill limited it to acts which "causes substantial emotional harm to" the victim, but the lesser annoyance standard emerged in the final bill.

If this poorly drafted law (both before and after this provision) is not limited by the courts, it could open the door to invasive subpoenas for identity information. Under established case law, plaintiffs must demonstrate that they have viable claims against the defendant before a court will allow a subpoena for the defendant's identity. Moreover, under this criminal provision, vague words like "annoy" could make it easier for aggressive prosecutors to allege an intent to annoy, and go after people who were only engaging in voracious public debate.

Fortunately, there has been little activity under the old law for Internet speech, and we can only hope that the new revision does not mean that more aggressive uses are in our future.

As a final note, the new law still excludes "interactive computer services" from the definition of telecommunications device (223(h)(1)(B)), meaning that anonymously using online services such as blogs and message boards may be unaffected by the change. That is to say, one could argue that the law only requires you to identify yourself to the blog service or message board provider, but not to the world.


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