Wednesday, January 11, 2006

With Intent to Annoy II

by Clinton Fein

With Intent to Annoy
Part I

The interest in this story has been so phenomenal that I have added some additional updates, and will likely add more as time goes on.

The annoying thing about hastily and ill-crafted legislation is that it forces one to be pedantic, muddying rather than clarifying the law, inviting legal challenges and outright violations. Remember, it depends what is is.

Assuming for argument’s sake that this law is designed to deal solely with conduct rather than content issues, so its not that someone sends you content you find annoying, but sends it hundreds of times, which you find annoying.

If the language as amended above is to be taken on its face, the first problem is with the word utilizes, since it doesn’t clarify whether utilizing it has to be for its intended telecommunication purpose.

Loudly setting off the alarm of my cell phone every two minutes whilst attending a ballet doesn’t change the fact that the device CAN BE USED to originate communications that are transmitted, in whole or in part, by the Internet. Or that I have not revealed my identity. Or that I have not annoyed many people. Similarly, if I was to hold up my cell phone, displaying an aborted fetus as the background image, and point it at doctors entering or leaving an abortion clinic, without revealing my identity, would that constitute *utilizing* a prohibited device and thus a felony?

And if one is to assume that the device or software must indeed be used to *originate* telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet, then the question of what is transmitted becomes unclear. With Annoy.com postcards, for instance, the sender uses the service to create a message which is then published on Annoy.com’s servers and inaccessible to the public. What is actually transmitted to the recipient is a notification that they have been sent a communication and provides them with a unique key that allows them to retrieve it if they so choose.

In fact, with C|Net, I was able to forward their very article to me, containing theoretically annoying content by spoofing Arlen Specter, and C|Net (like most news publications that facilitate emailing content, but unlike Annoy.com) actually sends the self-generated content in the email notification itself, only linking to the story.

Ironically, a remaining provision of the CDA is what actually protects third party content providers, and since Annoy.com does not monitor or approve postcards, and therefore intent cannot be established, prosecution is unlikely. Annoy.com’s overall stated intent to annoy is content based.

Nonetheless, I believe the law requires too many assumptions and remains vague enough to warrant a constitutional challenge.

ADDITIONAL LINKS

Perspective: Create an e-annoyance, go to jail
C|Net
Janaury 11, 2006

Declan McCullagh's Original Article

FAQ: The new 'annoy' law explained

By Declan McCullagh
Staff Writer, CNET News.com
Published: January 11, 2006



Q: What does the word "annoy" mean, anyway?
Vagueness is one of the law's problems. The Merriam-Webster dictionary offers two definitions of annoy. One is merely to "disturb or irritate," and the other is "to harass."

Q: Is this going to be challenged in court?
Maybe. Clinton Fein, who runs Annoy.com, has said he might. Fein has challenged a related law in the past.

But lawsuits are expensive, and there's no guarantee of success.

>>Read more


US criminalises cyber-harassment
By Iain Thomson
vnunet.com
Published: January 10, 2006



Clinton Fein, a South African activist who runs Annoy.com, was scathing about the new law.

"It appears that one is guilty of a crime if one were simply to 'utilise' a telecoms device 'with intent to annoy' a person regardless of the content or even in its absence," he said. "A conduct rather than a content crime; perhaps waving a BlackBerry in someone's face."

>>Read more


Here We Go Again: Law Attempts To Limit Anonymous Online Speech
By Kurt Opsahl
Electronic Frontier Foundation
Published: January 10, 2006



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.

>>Read more


Does New Cyberstalking Law Criminalize Free Expression?
By Wendy McElroy
Fox News
Published: January 17, 2006



First, we will discover what Section 113 truly means when someone challenges the law. A candidate being mentioned on the Internet is Annoy.com; the site offers a "service by which people send politically incorrect postcards without being required to furnish their identity."

The site owner Clinton Fein has a history of "seeking declaratory and injunctive relief" against the Communications Decency Act of 1996 through which "indecent" computer communication that is intended to "annoy" was criminalized. Fein believes Section 113 "warrant[s] a constitutional challenge."

>>Read more


Bush firma: galera per i troll
Punto Informatico
Published: January 11, 2006



Senza contare, poi, che in rete ci sono servizi, come annoy.com, che sono addirittura pensati proprio per spedire messaggi di disturbo, servizi che nascono anche grazie alla sostanziale innocuità di questo genere di comunicazioni. Il suo creatore, Clinton Fein, ha dichiarato a news.com di non avere alcuna intenzione di chiudere il proprio sito con la nuova legge ed anzi intende "combattere a partire dal Primo emendamento" alla Costituzione americana, quello che come noto difende la libertà di espressione.

>>Read more


Bei anonymer Online-Beleidigung drohen in den USA kunftig Haftstrafen
Heise Online
Published: January 10, 2006



Unter der neuen Definition konnten sich kunftig beispielsweise auch Politiker belastigt oder gestort fuhlen, die anonym in Internet-Foren kritisiert werden. Clinton Fein, Betreiber der Website Annoy.com, erwartet unterdessen Arger von Personen, denen sein schwarzer Humor nicht passt.

>>Read more


Zabranjeno anonimno dosaðivanje internetom
T-Porta
Published: January 10, 2006



Navedeni web korisnicima omoguaeava anonimno slanje iritantnih i duhovitih poruka e-po'te, a njegov vlasnik Clinton Fein izjavio je da ne misli ugasiti svoju stranicu; koja na duhovit naein koristi svaku priliku da kritizira aktualne amerieke vlasti; te da aee se, bude li to potrebno, u svojoj obrani pozvati na prvi amandman.

>>Read more


Skittkasting ulovlig pa nett i USA
VG Nett
Published: January 10, 2006



Amerikanske Clinton Fein, eieren av nettstedet Annoy.com hvor besøkende blant annet kan sende spydige og plagsomme postkort til andre, vil ifølge News.com ikke rette seg etter den nye loven.

>>Read more








UPDATES

With Intent to Annoy I
By CLINTON FEIN
January 11, 2006

FAQ: The new 'annoy' law explained
C|Net
Janaury 11, 2006

Declan McCullagh clarifies...

Perspective: Create an e-annoyance, go to jail
C|Net
Janaury 11, 2006

Declan McCullagh's Original Article

"Whoever...utilizes 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... without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person...who receives the communications...shall be fined under title 18 or imprisoned not more than two years, or both."

ApolloMedia v. Reno

On January 30, 1997, Annoy.com filed a federal court action seeking declaratory and injunctive relief challenging the provisions of the Communications Decency Act (CDA) of 1996 that criminalized any "indecent" computer communication intended to "annoy" another person. So began a prolonged court battle against Janet Reno and the Clinton Administration that was finally determined by the Supreme Court of the United States of America.

ApolloMedia v. Reno: Background and Context

ApolloMedia v. Reno: Media Coverage, Criticism and Analysis

ApolloMedia v. Reno: The Legal Documents

 
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