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New Law Prohibits Anonymous Cyberstalking

Bloggers, Writers Question Free Speech Implications

By Martin H. Bosworth
ConsumerAffairs.com

January 10, 2006
A tiny provision of a Department of Justice appropriations bill may end up becoming a major battleground over First Amendment rights on the Internet.

The provision, designed to prevent anonymous harassment and stalking via e-mail or the Web, is so broadly worded that many fear it could chill other forms of speech.

The "Violence Against Women and Department of Justice Reauthorization Act" for fiscal year 2006 contains one section entitled "Preventing Cyberstalking." Under the new law, the rules passed in the Communications Decency Act (CDA) to prevent harassment by telephone were extended to Internet communications as well.

According to the new law, "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."

CNET's Declan McCullagh touched off the controversy when he pointed out that the language is so vague that virtually any anonymous writer, blogger, or pundit could be prosecuted for "annoying" someone.

"Why should merely annoying someone be illegal?" he asked. "There are perfectly legitimate reasons to set up a Web site or write something incendiary without telling everyone exactly who you are."

Under the new interpretation, anonymous whistleblowers who set up Web sites to criticize government corruption or corporate crime could be arrested. Someone who wants to criticize their boss on their blog or Web site could be construed as "annoying" someone, he argued.

Others think the new statute is simply an attempt to do the right thing, but reaches far beyond its intent.

Law professor and author Daniel Solove said that "The statute is badly written, and if not interpreted narrowly, it would run into constitutional vagueness problems." According to Solove, the question of "intent to annoy" must come into play before the statute can be applied.

"[T]he law clearly is not a prohibition on anonymously annoying another person. It is far more restrictive than that. One must have a particular culpable state of mind in order to be guilty of violating the law," he wrote.

The sheer number of anonymous writers, pundits, and flame war starters on the Internet far outstrips the Justice Department's ability to prosecute them all. But much like the recording industry's practice of several high-profile lawsuits against music downloaders, the law may be applied as a sort of "chilling effect" designed to scare people away from posting content on the Web without disclosing their identities.

And much like Congress' heavy-handed attempts to prevent identity theft and spyware infections, the law may end up harming genuine instances of protected speech while letting the real bad guys go unpunished.

Or, as one online commenter put it: "There is no shortage of laws that are extremely wide and over-broad, but don't get enforced -- unless, of course, you are unconventional, weird, different, rub somebody the wrong way, or come to the attention of somebody in power with an axe to grind or a quota to fill. In other words, just another bad law created with the best of intentions, which can be abused by bad people."

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