Posted 2/14/2006 9:45 PM
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Cyberstalking law opens debate on what's annoying
By Richard Willing, USA TODAY
WASHINGTON ? It didn't get much publicity, but an anti-stalking bill passed by Congress recently makes it a federal crime to "annoy" someone over the Internet.
And that's really beginning to bug some people.
"It's a stupid law that has slipped in under the radar," says Clinton Fein, a San Francisco-based artist who runs annoy.com, a website that he says offers "unique and irreverent" commentary on politics and culture. "Who says what's officially annoying? Is that a business we really want our government to be in?"
The law makes it a crime to anonymously "annoy, abuse, threaten or harass" another person over the Internet.
Rep. Jim McDermott of Washington inserted the provision into legislation that reauthorized the federal Violence Against Women Act. It carries a prison sentence of up to two years and an unspecified fine for those convicted of violations. President Bush signed the bill into law Jan. 5.
McDermott said he was prompted to act by the case of Joelle Ligon, a Seattle woman who was sent menacing e-mails, falsely accused of résumé-padding in messages to co-workers and impersonated in sex-oriented Internet chat rooms from 1998 to 2003.
Some of the communications were traced to a former boyfriend in South Carolina. He was sentenced to five years of probation and 500 hours of community service after he was prosecuted under a federal telecommunications law that protects against harassment.
To eliminate questions over whether phone law applied to the Internet, McDermott pressed for the new legislation. The language "annoy, abuse, threaten or harass" was taken directly from the telephone law.
Mike DeCesare, a spokesman for McDermott, says the new law is not intended to curb free speech.
"This is about bad people doing bad things. ... It relates to somebody who does something to somebody else," he says. "It's not about posting something on a message board. It's got to be direct, one-to-one communication."
No one has been prosecuted under the new law, DeCesare says.
Critics aren't satisfied. Fein says it is unclear whether the law refers to annoying "conduct" or simply an e-mail whose message irritates its recipient.
"No one knows what this means," Fein says. "That in itself has a chilling effect."
Barry Steinhardt, a lawyer who specializes in privacy issues at the American Civil Liberties Union in New York City, says the new law's chief problem is the "subjective nature" of the word annoy. "Words like threaten, harass and abuse can be defined by what a reasonable person understands them to mean," he says. "Anyone who's ever had their spam filter stop something they wanted, or let something through that they didn't, knows that deciding what is annoying is something else again."
He says the ACLU is considering whether to ask a federal court to declare the new law unconstitutional because it's too vague.
A scholar who specializes in cyber law says the law could be difficult to overturn. Susan Brenner, a University of Dayton law professor and a consultant to the Secret Service on cyber laws, says courts likely would read "annoy" together with the words that follow it ? "abuse, threaten or harass" ? and conclude that the law refers to specific behavior.
In 2004, the U.S. Court of Appeals for the 6th Circuit used that reasoning to uphold the conviction of Erik Bowker, an Ohio man who had stalked a Youngstown television reporter via telephone.
But in 1999, a federal appeals court in Washington, D.C., ruled that a man could not be prosecuted for "annoying" conduct because he had telephoned the U.S. attorney seven times to complain about a case that had been brought against him. The calls, the court found, were political speech protected by the First Amendment.
David Hudson, a lawyer with the First Amendment Center, a speech-rights advocacy group in Nashville, says the different ways that courts have interpreted the word "annoy" make the new anti-stalking law "ripe for a challenge."
