01/12/06 - New Law Threatens Internet Communications - Disclaimer

01/12/06 - VITAMIN LAWYER UPDATE e-MEMO

On January 5th the US president signed another complex and confusing law that has a serious threat to Internet communications buried in it.

The law is The Violence Against Women and Justice Department Reorganization Act, and the relevant section is 113. It states:

"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."

It is my opinion that this restriction will most likely not stand up against constitutional scrutiny. There is law backing anonymous political statements, reviewed by Justice Thomas in '95 - http://straylight.law.cornell.edu/supct/html/93-986.ZC1.html

"After reviewing the weight of the historical evidence, it seems that the Framers understood the First Amendment to protect an author's right to express his thoughts on political candidates or issues in an anonymous fashion."

I'm sending this alert out so that people are aware of this new law and can more carefully express themselves. For example, if you were to post an anonymous comment about, say, some company CEO, you might want to include some sort of disclaimer, such as "This statement is being made to express my opinions and understanding of the truth in the matter; it is not intended to annoy, abuse, threaten, or harass any person."

I still don't understand why Congress doesn't get it -- the First Amendment states explicitly "Congress shall make no law..." abridging freedom of speech -- "no law" means just that: NO LAW.

Here is a cogent comment I received from a knowledgeable source:

“It turns out that the statute can only be used when prohibiting the speech would not violate the First Amendment. If speech is protected by the First Amendment, the statute is unconstitutional as applied and the indictment must be dismissed. An example of this is United States v. Popa, 187 F.3d 672 (D.C. Cir. 1999). In Popa, the defendant called the U.S. Attorney for D.C on the telephone several times, and each time would hurl insults at the U.S. Attorney without identifying himself. He was charged under 47 U.S.C. 223(a)(1)(C), and raised a First Amendment defense. Writing for a unanimous panel, Judge Ginsburg reversed the conviction: punishing the speech violated the Supreme Court's First Amendment test in United States v. O'Brien, 391 U.S. 367 (1968), he reasoned, such that the statute was unconstitutional as applied to those facts.”