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Gray Matters in 'Annoying' e-Mail Law

The blogosphere is hyperventilating. Again.

This time, it's about the so-called "annoying e-mail" law that has been generating discussion on some blogs the past few days.

Not to mention the e-mail forwards from colleagues carrying comments such as: HUGE implications for business! Horrors!

The source of all this concern? A law meant to update anti-harassment legislation for the Internet age, primarily to help women stop their harassers from extending that into the digital realm.

As internetnews.com's Roy Mark reported, the provision, contained in the Violence Against Women Act (VAWA) signed last week by President Bush, amends the existing law to create criminal penalties for anonymous e-mails and VoIP calls sent with the intent to "annoy, abuse, threaten or harass any person." Criminal penalties include up to two years in jail.

"VAWA was originally passed in 1994 to protect women from domestic violence, sexual assault and stalking. The new version of the bill adds a cyber stalking provision to the legislation that includes anonymous e-mail and Internet-based voice services such as Vonage," Mark reported.

So, flame somebody anonymously and go to jail? Hardly.

But the problem here, legal eagles like to point out, is that there's just enough gray area in the reauthorization bill to say it could happen. Yes, and a giant meteor could some day slam into earth. Heck, CAN-SPAM could some day actually curtail spam. My knee could actually regenerate cartilage. It could all happen.

In this case, however, the over-the-top interpretation by saying anonymous postings are illegal is just out of line. But let's give some of the concern its due anyway. As usual, the discussions on most of the blogs have shed more light and understanding on the subject.

Take the reaction and postings of Kurt Opsahl, staff attorney with the Electronic Frontier Foundation. He told our Roy Mark that the law is not necessary nor a good idea.

"'Annoy' is a pretty vague term. It possibly could open the door for invasive subpoenas for identity information."

It's a blow for free speech on the Internet, he wrote in a recent post on EFF's site.

As Opsahl explained, Section 113 of the complex bill, dubbed "Preventing Cyberstalking," amends the [1996] Telecommunication Act's prohibitions on anonymous annoyance over the telephone.

He adds, "Nevertheless, a court considering this provision may also be guided to find a reading of the revised law that will comport with the First Amendment."

Sure, it is well-settled that the U.S. First Amendment shelters the right to speak anonymously, he concedes. But in his view the problem is that the law is far too vague. "It purports to prohibit 'utilizing' your modem 'with intent to annoy, abuse, threaten, or harass any person ... who receives the communications' -- on pain of up to two years in the slammer."

That has some folks in the legal community wondering aloud: Is it possible this new provision in the law could allow prosecutors to use it to demand ID of people writing critical e-mails? Perhaps they would never bring a harassment suit, but the point would be made: We can find out who you are!

There is a potential here for a prosecutor to use it to hammer a political opponent, even use it to harass someone themselves and curtail someone's freedom of speech.

On the other hand, prosecutors could use this to gather evidence against someone who has extended his abusive and threatening behavior towards someone to include a constant stream of threatening e-mails.

The key point here is intent, says Susan Howley, an attorney at the Center for Victims of Crime. "Intent is very difficult to prove. Annoy? Hard to prove intent unless you send 500 of them [e-mails]. Does one prank call amount to annoying? You could claim that. Has it ever happened? I don't think so. This was the best of the options to get at someone who is really threatening."

I'm not saying don't overlook the law's implications. But just proclaiming that this law could throw anonymous posters in the slammer is just a gross overstatement. Sure makes for good copy, though, doesn't it?

If you don't agree, you can participate in that grand Internet tradition of sending feedback to me with your name and reply address, or as an anonymous coward. You're free to choose.

Washington D.C. Editor Roy Mark contributed reporting for this column.

Erin Joyce is executive editor of internet.com's news channel.