WASHINGTON, DC – What out keyboard warriors. While most Americans were getting used to writing “2006” on their checks, President Bush was signing a law that may well affect the ability of users of the Internet to remain anonymous.Deep within the “Violence Against Women and Department of Justice Reauthorization Act” is a section labeled “Preventing Cyberstalking.” It is here that the federal government expands telephone harassment laws to include internet messages made by anyone who “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.” If convicted, a person would face “not more than two years” in prison, a stiff fine, or both.
While the motives behind Sec. 113 may very well be laudable, the real world application to the internet could be disastrous if enforced with poor prosecutorial discretion. In addition to obvious questions about precisely how one determines in advance what will be “annoying” to any individual, there are legitimate circumstances under which people may feel compelled to post anonymously or while using a pseudonym. Usenet is rife with anonymous posters and those who prefer to use handles. It is likewise rife with flame wars and exceptionally annoying characters.
Interestingly enough, the larger bill within which Sec. 113 resides, was designed to fund the Department of Justice, thus assuring that anything placed inside of it would be automatically passed once the funding bill was authorized. The addition of Sec. 113 came courtesy of Pennsylvania’s Republican Senator Arlen Specter and included much stronger language than an earlier version passed by the House in September, which criminalized use of any “interactive computer service” in order to cause “substantial emotional harm.”
“The use of the word ‘annoy’ is particularly problematic,” Marv Johnson, legislative counsel for the American Civil Liberties Union, points out. “What’s annoying to one person may not be annoying to someone else.”
While few would support the malicious annoyance or harassment of anyone, there are times when distributing uncomfortable information can be justified and identities understandably withheld. If improperly enforced, the potentially chilling effect could be very real upon those posting sensitive information that might cause them to be fired or become the target of retribution. Ironically, conservative U.S. Supreme Court Justice Clarence Thomas defended the practice of anonymous distribution of information in 1995.
Although debate is ongoing, some experts believe that email messages and Web logs are unlikely to be considered “telecommunications devices,” and thus would not be covered by the new law. Others believe that Congress intended a broader interpretation and point out that both of those communication methods would be covered by the phrase “other types of communications that are transmitted, in whole or in part, by the internet.”
