This law was probably enacted to do a little CYA and will never be enforced. The politicians can tell all the soccer moms how they’re being protected from all the evil in the world.
[quote]Headhunter wrote:
This law was probably enacted to do a little CYA and will never be enforced. The politicians can tell all the soccer moms how they’re being protected from all the evil in the world.
[/quote]
…until the internet continues to grow in terms of business and educational transactions and someone pulls this law back up 15 years from now to inact their own brand of punishment. It isn’t always about what can be done with these laws right now. The internet will no doubt continue to grow until nearly all transactions are done through it.
[quote]vroom wrote:
…
P.S. Extra kudos to Zap for pointing out that democrats didn’t catch this little republican addition. That’s putting the blame where it belongs alright! Good work talking point boy.[/quote]
Both parties are responsible for this.
To only point out one party is silly.
This may or may not be a bad law. Some internet harrassment is serious and should be stopped.
Some is silly and should be ignored.
I don’t know if the law is well written enough to do the job right.
Both parties apparently signed on without a fuss so to blame evil Republicans alone is silly.
Kudos to you for showing your point of view.
[quote]Zap Branigan wrote:
Both parties are responsible for this.
To only point out one party is silly.
This may or may not be a bad law. Some internet harrassment is serious and should be stopped.
Some is silly and should be ignored.
I don’t know if the law is well written enough to do the job right.
Both parties apparently signed on without a fuss so to blame evil Republicans alone is silly.
Kudos to you for showing your point of view.[/quote]
Exactly, Zap. Key provision - and perhaps the most troublesome - the Senate unanimously approved it. From the most liberal Democrat to the most conservative Republican in that august body, all voted yes.
[quote]BostonBarrister wrote:
Or maybe not…
[/quote]
I think this analysis is flawed. There is a qualitative difference between writing a post on, say, a blog or forum, and calling someone directly via phone or VOIP. There is no such thing as a “simple” extension of the law into the realm of the internet, any more than one could simply extend the law into the real world. The logic behind laws regulating harassment over the phone have several motivators:
-
Phones are part of a public utility system that help protect public welfare. Disruption of the phone service may endanger lives. This is the reasoning behind blocking the automated telemarketing machines that kept the phone lines open.
-
Phones are particularly invasive; they are, in a limited sense, an invitation of an outside party into one’s home. As such, it’s important to enforce the good-faith aspects of this communication.
-
(going back to 1) Phones are limited-service utilities; a person can conduct only one phone conversation at a time, so abuse of the service constitutes a real injury to the victim, who is unable to use the system for its intended use.
-
Anonymity is only one-way in the phone system. The assumption for an annoying or harassing phone call is that the caller knows (or is able to know) the recipient of the call, whereas the recipient does NOT know the caller. This can be particularly threatening to the recipient.
The internet, in general, does not meet any of these criteria. Of course, the legislation has become (after the fact) largely about stalking. Remember, stalking is only a recent legal issue, and harassing phone calls were generally only seen as a nuisance before people started clamoring for anti-stalking legislation.
Further, many internet “conversations” more closely resemble communication in a large gathering of people than one-to-one communication as implied with a telephone.
Overall, I don’t see what good can come of applying an overly broad law to a bunch of cases entirely outside of the original intent of the law, and then trusting prosecutorial discretion. It’s irresponsible.
The identification aspect is troubling actually…
I don’t want to reveal every detail of my existence to all the nutbars in the world, just so that I can post messages to the Internet.
Luckily, I live in a less draconian country, for now.
[quote]nephorm wrote:
BostonBarrister wrote:
Or maybe not…
I think this analysis is flawed. There is a qualitative difference between writing a post on, say, a blog or forum, and calling someone directly via phone or VOIP. There is no such thing as a “simple” extension of the law into the realm of the internet, any more than one could simply extend the law into the real world. The logic behind laws regulating harassment over the phone have several motivators:
-
Phones are part of a public utility system that help protect public welfare. Disruption of the phone service may endanger lives. This is the reasoning behind blocking the automated telemarketing machines that kept the phone lines open.
-
Phones are particularly invasive; they are, in a limited sense, an invitation of an outside party into one’s home. As such, it’s important to enforce the good-faith aspects of this communication.
-
(going back to 1) Phones are limited-service utilities; a person can conduct only one phone conversation at a time, so abuse of the service constitutes a real injury to the victim, who is unable to use the system for its intended use.
-
Anonymity is only one-way in the phone system. The assumption for an annoying or harassing phone call is that the caller knows (or is able to know) the recipient of the call, whereas the recipient does NOT know the caller. This can be particularly threatening to the recipient.
The internet, in general, does not meet any of these criteria. Of course, the legislation has become (after the fact) largely about stalking. Remember, stalking is only a recent legal issue, and harassing phone calls were generally only seen as a nuisance before people started clamoring for anti-stalking legislation.
Further, many internet “conversations” more closely resemble communication in a large gathering of people than one-to-one communication as implied with a telephone.
Overall, I don’t see what good can come of applying an overly broad law to a bunch of cases entirely outside of the original intent of the law, and then trusting prosecutorial discretion. It’s irresponsible.
[/quote]
The main point is that the statutory law doesn’t trump 1st Amendment free speech rights – and that’s already established by precedent on the subject, in addition to the general supremacy clause analysis.
Fortunately or unfortunately, depending on your perspective (which likely depends on the issue at hand - kind of like belief in the force of precedent), courts tend to take this tack with laws – they don’t declare laws to be unconstitutional on their face simply because they CAN be applied in an unconstitutional manner. Rather, they read them as only applying in a manner that is consistent with the Constitution. The only laws that get declared unconstitutional on their face are laws that must be unconstitutional, or that the courts find were passed with an unconstitutional purpose (which, essesntially, is another way of saying it must be unconstitutional).
So, while I agree with you that in concept it’s irresponsible, it’s a structural problem. As long as Congress is going to continue to pass huge laws (and generally not read them all) - which they will continue to do, especially as long as the limitations on Congressional power have been effectively read out of existence in all but the most egregious cases w/r/t the Commerce Clause, the Spending Power, etc. – this will happen – and the courts will step in, and, giving deference to what they perceive to be Congressional intent, will read the statute in a way that fixes it.
[quote]BostonBarrister wrote:
The main point is that the statutory law doesn’t trump 1st Amendment free speech rights – and that’s already established by precedent on the subject, in addition to the general supremacy clause analysis.
[/quote]
My point is that the changes in the law cause it to apply to a whole new spectrum of cases which precedent won’t easily apply to. In general, yes, first amendment rights trump the current law wrt phone communications. But I would argue that there is a fairly well-defined and well-understood dynamic in phone conversations that is not easily applied to internet communication. One of the mitigating factors for the broadness of the original legislation is prosecutorial discretion; prosecutors ought to have a fairly good idea, based on precedent, of what kind of phone calls would fall under first-amendment protection.
[quote]
So, while I agree with you that in concept it’s irresponsible, it’s a structural problem. As long as Congress is going to continue to pass huge laws (and generally not read them all) - which they will continue to do, especially as long as the limitations on Congressional power have been effectively read out of existence in all but the most egregious cases w/r/t the Commerce Clause, the Spending Power, etc. – this will happen – and the courts will step in, and, giving deference to what they perceive to be Congressional intent, will read the statute in a way that fixes it.[/quote]
Of course, I believe that Congressional power ought to be limited, or at least constrained. Riders have been a problem for years. At any rate, I just think the analysis you reposted is just a little too optimistic. The courts may rule on the “correct” (first amendment) side of things, but that doesn’t remove the fact that congress has introduced fuzziness into the legislation that shouldn’t be there.
But it’s not so much the types of phone calls that are at issue, it’s the nature of the speech. First Amendment analysis along these lines – harassment cases – is largely dependant on the type of speech, and not at all dependent on the medium of the speech.
So I think the precedents are more applicable than you are crediting.
Again though, not to excuse Congress for sloppiness – it’s just that I’ve ceased to be surprised by it, having seen it so often, in so many cases. Especially in the context of criminal laws, judges take it upon themselves to “fix” legislative sloppiness all the time. I remember getting into discussions in my legal process class about whether judges should do that, as it essentially gives the legislators a free pass, because there’s no resulting injustice about which voters would get upset (the balancing factor being, of course, avoiding injustice in the case at bar that would result from applying the law as written (this is in cases in which it would be constitutional but was still poorly drafted, and arguably didn’t say what they meant)).
Then again, Eugene Volokh is troubled by the law, and thinks its problems are more violative of First Amendment rights on the face of the law - which I suppose means he either wants Congress to fix it or a court to throw it out entirely as applied to posting on the internet –
I was definitely thinking along the lines of his second proposed interpretation of Popa, but can now see more clearly how the third and fourth interpretations would be highly problematic:
http://volokh.com/archives/archive_2006_01_08-2006_01_14.shtml#1136923654
Eugene Volokh, January 10, 2006 at 3:07pm]
Annoying Anonymous Speech Online:
People are troubled ( http://news.com.com/2010-1028_3-6022491.html )by a just-enacted statute that extends part of telephone harassment law to the Internet. I think they’re right to be troubled by it, and here’s why.
First, the statute, with deletions marked by strikeouts and insertions marked by underlines:
[i] 47 U.S.C. ? 223(a)(1)(C): Whoever … in interstate or foreign communications … 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…
(h)(1) The use of the term "telecommunications device" in this section --
(A) shall not impose new obligations on broadcasting station licensees and cable operators covered by obscenity and indecency provisions elsewhere in this chapter; and
(B) does not include an interactive computer service [= any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions].; and
(C) in the case of subparagraph (C) of subsection (a)(1), includes 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 ....[/i]
What does this practically mean?
-
This potentially criminalizes any anonymous speech on a Web site that’s intended to annoy at least some readers, even if it’s also intended to inform other readers. This is true whether the poster is berating a government official, a religious figure, a company that he thinks provides bad service, an academic who he thinks is doing or saying something misguided, a sports figure who he thinks is misbehaving, or what have you; so long as he’s trying to annoy any recipient (whether the target, if the poster thinks the target is reading the blog, or the target’s partisans or fans).
-
How is this different from traditional telephone harassment law? The trouble is that the change extends traditional telephone harassment law from a basically one-to-one medium (phone calls) to include a one-to-many medium (Web sites).
This is a big change. One-to-one speech that’s intended to annoy the one recipient is rarely of very much First Amendment value; people are just rarely persuaded or enlightened by speech that’s intended to annoy them. It has some value (see item 3 below), but to the extent that it’s in some measure deterred, the loss to public debate isn’t that great ? speakers are still free to speak to others besides the person they’re trying to annoy.
But one-to-many speech that is intended to annoy one or a few readers, but intended and likely to enlighten or persuade many other readers, is potentially much more valuable. Juan might think that the target of the speech deserves to be berated for his misconduct, and that the target’s supporters deserve to be berated for siding with the target; but Juan might also want the rest of the public to hear about the target’s misbehavior, and to be persuaded to think less of the target, or to act differently themselves.
Though the desire to annoy may sometimes be petty (and I’m using Juan just because Juan is our one anonymous coblogger here, not because Juan generally tries to annoy people!), it shouldn’t strip the speech of constitutional protection. “[I]n the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment… [E]ven when a speaker or writer is motivated by hatred or ill will his expression was protected by the First Amendment …” ( HUSTLER MAGAZINE v. FALWELL | FindLaw ) And the same is true, I think, in discussion of consumer matters, of religion, of sports, and of other things, not just public affairs.
- Orin suggests that this isn’t a problem, because even traditional telephone harassment law has already been limited to exclude “speech [that] is protected by the First Amendment.” Orin cites United States v. Popa ( DC Court of Appeals Opinions and Cases | FindLaw ), a case that set aside as unconstitutional a conviction of Ion Popa, who made several racist calls to the U.S. Attorney for the District of Columbia (the chief federal prosecutor in the District). The trouble, though, is that it’s far from clear just what speech Popa protects.
A. One possible interpretation of Popa is that it bars telephone harassment prosecution when the “speech is protected by the First Amendment.” At some level, that’s almost tautological ? of course when the speech is protected by the First Amendment, the First Amendment prohibits prosecution for that speech. But it also returns us to the underlying question: When is speech that’s intended to annoy the recipient protected by the First Amendment? If someone calls not a prosecutor but a law professor and leaves an anonymous deliberately annoying racist message, is that protected? What if he calls a law student with such a message? What if he posts an anonymous blog post that says this? The poster would have little guidance about what he may or may not say.
Of course, when prosecuted, the speaker can say “my speech is protected by the First Amendment.” But given that the statute draws no distinction between what constitutes protected annoying anonymous speech and what constitutes unprotected annoying anonymous speech, the speaker doesn’t know what he may safely say, and the prosecutor doesn’t have much guidance about what he should prosecute. It’s as if Congress enacted a whole bunch of speech restrictions but tacked on an “except if the First Amendment prohibits this” to them. The result would be speech restrictions that are technically not overbroad (since by their terms they don’t bar First-Amendment-protected speech), but that are practically too vague, since they provide little guidance to people about what they may say.
B. Another possible view is that the telephone harassment statute bars any prosecution for speech unless the speech falls within the traditional First Amendment exceptions, such as threats, obscenity (which means hard-core pornography), false statements of fact, fighting words, and the like. These exceptions are at least tolerably well-defined, and all of us already generally have to avoid speech that falls within these exceptions (since the federal and state governments have taken advantage of most of these exceptions to in fact outlaw or at least make tortious speech that fits in the exceptions).
But if that’s the interpretation of Popa, then most garden-variety telephone harassment, of the sort that most people assume is fully prosecutable, would be unpunishable. Calling someone anonymously simply to insult them wouldn’t be covered (such insults don’t fit within the “fighting words” exception, since the anonymity and distance of the speaker makes it unlikely that the speech will start a fight). Likewise for calling someone to make an indecent suggestion, except when the suggestion is an actual threat of violence or is so sexually explicit as to be obscene (which is a pretty high threshold to meet). The very premise of telephone harassment law, as it’s generally understood, is that some such speech ? while protected in many media ? is unprotected when said with the intent to annoy (and perhaps said to a particular person). Harassment law thus rests on the theory that there should be a new First Amendment exception recognized for “telephone harassment” that goes beyond just threats, fighting words, and the like. So the “speech is protected unless it’s threats, fighting words, obscenity, incitement, or false statements of fact” theory is thus almost certainly not what Congress has had in mind, and is unlikely to be adopted by the courts.
C. Popa can easily be read, I think, as holding that speech that’s “intend[ed] in part to communicate a political message” is protected from punishment by the statute. But it’s far from clear that this would protect speech on a Web site that’s intended to communicate a message about some company’s allegedly mistreatment of its consumers, that’s intended to criticize the performance of a sports figure, that’s intended to express an annoying view about theology, or whatever else. What’s more, it’s often not easy to tell exactly what’s a “political” message and what’s not. The court in Popa held that racist insults of a high-level official are political. What about speech that criticizes law professors (whether racist speech, speech that casts aspersions on their intellect or teaching ability, or what have you)? What about speech that criticizes a particular student in racist terms, but implicitly conveys a message about school admissions? (Not that I would endorse such speech, of course; I just think that (a) it ought to be constitutionally protected, when posted on a Web site, even if it’s intended to annoy, and (b) there’s likely to be controversy about whether it’s political.)
D. Finally, Popa can also be read as holding that speech is protected from the statute when the speaker “intend[ed] to engage in public or political discourse.” “Public discourse” is broader than just “political message,” and would certainly include religion and probably consumer matters involving large businesses and the like. But it too is a pretty vague term. Is publicly distributed personal criticism of a particular professional’s skills, for instance, a lawyer’s or a professor’s, “public discourse”? There’s no well-established First Amendment test for this, and the Court’s use of the related term “public concern” has proven to be unpredictable and, I think, often misguided (see Part V.B of this article, starting with PDF page 46 http://www.law.ucla.edu/volokh/speechip.pdf ).
So on balance I think the extension of the telephone harassment statute to the Web is a mistake. The statute already has problems, and the extension risks substantially exacerbating those problems, by potentially covering one-to-many annoying Web speech as well as the somewhat less valuable one-to-one annoying telephone calls.
[quote]thunderbolt23 wrote:
Zap Branigan wrote:
Both parties are responsible for this.
To only point out one party is silly.
This may or may not be a bad law. Some internet harrassment is serious and should be stopped.
Some is silly and should be ignored.
I don’t know if the law is well written enough to do the job right.
Both parties apparently signed on without a fuss so to blame evil Republicans alone is silly.
Kudos to you for showing your point of view.
Exactly, Zap. Key provision - and perhaps the most troublesome - the Senate unanimously approved it. From the most liberal Democrat to the most conservative Republican in that august body, all voted yes.[/quote]
It amazes me that anyone that wants to call themselves a “liberal” or a “democrat” could vote for this.
Interesting points Boston…but infringements on freedom of speech are hard to prove one way or the other. I believe this may get struck down if their was a serious challenge to it…
[quote]ALDurr wrote:
kroby wrote:
AlDurr, who is that as your avatar? Spawn? Evil Ninja Batman? An Avenger?
It’s the Black Panther. A Marvel Comics character. He was one of my favorites because he was a strong, proud King of the African nation of Wakanda (It doesn’t exist, but it sounds cool) that was totally devoted to the welfare of his people. According to the comics, that nation was one of the most technologically advanced in that comic world.
I realized I just geeked out on you. It happens on occassion. LOL![/quote]
Sounds like a comic: technologically advanced African countries.
[quote]Garrett W. wrote:
ALDurr wrote:
kroby wrote:
AlDurr, who is that as your avatar? Spawn? Evil Ninja Batman? An Avenger?
It’s the Black Panther. A Marvel Comics character. He was one of my favorites because he was a strong, proud King of the African nation of Wakanda (It doesn’t exist, but it sounds cool) that was totally devoted to the welfare of his people. According to the comics, that nation was one of the most technologically advanced in that comic world.
I realized I just geeked out on you. It happens on occassion. LOL!
Sounds like a comic: technologically advanced African countries.[/quote]
Almost like “compassionate conservative”.
I had actually been more and more interested in the character after reading about him on the internet a few months ago and the release of a hand painted collector’s item statue of the character. Apparently, they are planning to bring him to the big screen eventually once the story is fleshed out.
Geek info (don’t read if you don’t care about comic book characters). This is coming from memory so I apologize for the story telling:
The premise of his story line is the landing of a meteorite in Africa many thousands of years ago. The tribe that surrounded this area and claimed the land it was on was innately very strong in war and strength of culture. They were never conquered by outsiders and slavery never had an effect there due to the use of the element found inside this meteorite. The element, called “Vibranium”, has many properties, the strongest of which is the complete absorption of any direct force or sound. It will immediately turn any force directed at it to “0”. Over time, the tribe learns to even micro-weave parts of this metal into clothing worn by the king. Due to the tribe’s worship of a “Panther God”, the king takes the uniform of a man-panther whenever his tribe is in danger. The garment he wears, containing the metal, is impenetrable. The king of the tribe is also genetically the most perfect physical specimen in terms of the human race due to consuming a heart shaped herb during his ascension to the throne and years of training.
Due to the use of this metal, and the fact that this tribe had never been conquered, they are the epitome of human technilogical advancement due to being one of the first cultures to roam the planet never to be disturbed by outside conflict.
The Black Panther is the King of the tribe, Wakanda. He was written into story lines of the Avengers early on, teamed up with Captain America. His early stories maintained the story arc of him being a spy (on the Avengers) attempting to learn how our government and others planned to take over his own country in order to finally gain personal access to the meteorite. Currently, his role is protection of his own people from the rise of outside conflict due to nearly every major power fighting for control of this small area of Africa.
[quote]JustTheFacts wrote:
Ultimately it’s not the person they’re after – it’s the INTERNET.
Slowly they’re trying to villify the internet as a place of evil and “misinformation” that needs to be censored and government controlled.
Spooky AOL Ad Says Big Brother Is Watching the Internet
Why is a company that profits from Internet use demonizing the Internet?
http://www.prisonplanet.com/articles/january2006/030106aol.htm[/quote]
US plans to ‘fight the net’ revealed
BBC
27 January 2006
‘Fight the net’
When it describes plans for electronic warfare, or EW, the document takes on an extraordinary tone.
It seems to see the internet as being equivalent to an enemy weapons system.
“Strategy should be based on the premise that the Department [of Defense] will ‘fight the net’ as it would an enemy weapons system,” it reads.
The slogan “fight the net” appears several times throughout the roadmap.
US digital ambition
And, in a grand finale, the document recommends that the United States should seek the ability to “provide maximum control of the entire electromagnetic spectrum”.
US forces should be able to “disrupt or destroy the full spectrum of globally emerging communications systems, sensors, and weapons systems dependent on the electromagnetic spectrum”.
Consider that for a moment.
The US military seeks the capability to knock out every telephone, every networked computer, every radar system on the planet.
Are these plans the pipe dreams of self-aggrandising bureaucrats? Or are they real?
The fact that the “Information Operations Roadmap” is approved by the Secretary of Defense suggests that these plans are taken very seriously indeed in the Pentagon.
And that the scale and grandeur of the digital revolution is matched only by the US military’s ambitions for it.