January 16th, 2006
EFF: 'Annoy' law could damage right to anonymity
If the new "annoy" provision of the Telecommunication Act goes unchallenged, says EFF attorney Kurt Opsahl, it opens very substantial restrictions on Internet users’ First Amendment rights. (Note that the law excludes "Internet computer services,"so the concern is chiefly with VoIP services. The law makes illegal anonymous communications "with intent to annoy, abuse, threaten, or harass any person … who receives the communications."
Opsahl argues on the EFF site that restraint on anonymous speech is cause for concern.
As the Supreme Court has held, “Anonymity is a shield from the tyranny of the majority,” that “exemplifies the purpose” of the First Amendment: “to protect unpopular individuals from retaliation … at the hand of an intolerant society.” Accordingly, courts have routinely found that the constitutional right to speak anonymously must be carefully safeguarded.
There are already laws on the books that prohibit harassment, and one can use subpoenas — with judicial oversight — to unmask anonymous speakers that violate the law. There is no need to criminalize the very act of communicating anonymously, even if the recipient will annoyed by the communication.
Most importantly, the use of "annoy" is considerable broadening of the earlier law.
Prior versions of the bill limited it to acts which "causes substantial emotional harm to" the victim, but the lesser annoyance standard emerged in the final bill.
If this poorly drafted law (both before and after this provision) is not limited by the courts, it could open the door to invasive subpoenas for identity information. Under established case law, plaintiffs must demonstrate that they have viable claims against the defendant before a court will allow a subpoena for the defendant’s identity. Moreover, under this criminal provision, vague words like "annoy" could make it easier for aggressive prosecutors to allege an intent to annoy, and go after people who were only engaging in voracious public debate.
