Thursday, January 12, 2006
The annoying thing about hastily and ill-crafted legislation is that it forces one to be pedantic, muddying rather than clarifying the law, inviting legal challenges and outright violations. Remember, it depends what is is.
Assuming for argument’s sake that this law is designed to deal solely with conduct rather than content issues, so its not that someone sends you content you find annoying, but sends it hundreds of times, which you find annoying.
If the language as amended above is to be taken on its face, the first problem is with the word utilizes, since it doesn’t clarify whether utilizing it has to be for its intended telecommunication purpose.
Loudly setting off the alarm of my cell phone every two minutes whilst attending a ballet doesn’t change the fact that the device CAN BE USED to originate communications that are transmitted, in whole or in part, by the Internet. Or that I have not revealed my identity. Or that I have not annoyed many people. Similarly, if I was to hold up my cell phone, displaying an aborted fetus as the background image, and point it at doctors entering or leaving an abortion clinic, without revealing my identity, would that constitute *utilizing* a prohibited device and thus a felony?
And if one is to assume that the device or software must indeed be used to *originate* telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet, then the question of what is transmitted becomes unclear. With Annoy.com postcards, for instance, the sender uses the service to create a message which is then published on Annoy.com’s servers and inaccessible to the public. What is actually transmitted to the recipient is a notification that they have been sent a communication and provides them with a unique key that allows them to retrieve it if they so choose.
In fact, with CNet, I was able to forward their very article to me, containing theoretically annoying content by spoofing Arlen Specter, and CNet (like most news publications that facilitate emailing content, but unlike Annoy.com) actually sends the self-generated content in the email notification itself, only linking to the story.
Ironically, a remaining provision of the CDA is what actually protects third party content providers, and since Annoy.com does not monitor or approve postcards, and therefore intent cannot be established, prosecution is unlikely. Annoy.com’s overall stated intent to annoy is content based.
Nonetheless, I believe the law requires too many assumptions and remains vague enough to warrant a constitutional challenge.
FAQ: The new 'annoy' law explained
Janaury 11, 2006
Declan McCullagh clarifies...
Perspective: Create an e-annoyance, go to jail
Janaury 11, 2006
Declan McCullagh's Original Article