Wednesday, January 11, 2006

Repealing the First Amendment

Well, at least as far as the Internet is concerned, it may be repealed--at least until some poor soul has to go to court and get a certain new law declared unconstitutional--if they can.

(I'm far from the first to comment on this, but I wanted to wait until the first breathless rush of the "OMIGAWD!" crowd was over. )

Short version of the story is this: Congress has enacted and the President has signed, the Violence Against Women and Department of Justice Reauthorization Act. Well, no one could be against such things, right? Right--this sort of thing is what is known in Washington as "must pass" legislation. Failure to pass it will bring about rampant bad behavior, global warming and bad press for politicians.

Buried in the bill is some interesting language that amends 47 U.S.C. 223(h)(1), which is one of the Federal statutes regarding anonymous harassment.

News.com writer Declan McCullagh puts it this way:

Buried deep in the new law is Sec. 113, an innocuously titled bit called "Preventing Cyberstalking." It rewrites existing telephone harassment law to prohibit anyone from using the Internet "without disclosing his identity and with intent to annoy."

My first thought when I read this Monday was "Yeah, but you have to be anonymous and intend to annoy someone." Even though I use a nome de plume, it would be a relatively trivial exercise for someone to find out my real name and trace me at least to the general area I live in. And while I may be annoying (just ask Mrs. Freeholder), I rarely intend to be annoying. So I'm safe, right.

Not so fast. Mr. McCullagh has some further thoughts on this subject. Now, of course, he isn't a lawyer, but he has some valid points, the most important of which is this (in Q & A form):

Q: But that section is titled "Obscene or harassing telephone calls." Doesn't that mean only voice over Internet Protocol, or VoIP, is now going to be covered by the law?

A: That's one interpretation. But that's not how Congress actually wrote the law, however, and precise wording matters.

If politicians wanted to limit the law to VoIP, they could have followed what they did in other bills and actually used the term. They could have also limited the "annoy" requirement to contacting an individual person.

But they didn't. The law instead covers any types of "communications that are transmitted, in whole or in part, by the Internet"--not just VoIP conversations. Also, it covers any person "who receives the communications" rather than a narrower definition that could have been written as "an individual intentionally targeted as the recipient of the communications."

Going along with this is his closing thought, "If politicians wanted to limit the "annoy" prohibition to VoIP, they could easily have done so. But they didn't."

Uh-huh. You really have to wonder what the agenda is here. Are we really out to protect women? Do that many people put up websites or blogs that somehow encourage violence against women (or the closure of the Department of Justice)? Or is it something else entirely?

[Donning his "conspiracy theorist" hat]

Could it be that the politicians are simply tired of the pajamahadeen? You don't suppose that this could simply be a way to shut up what has become a big thorn in their side, do you?

Well, do you?

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