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net.wars: How to be annoying and stay out of jail

You could hardly ask for a story more perfectly suited to mass-forwarded emailing than the one that began circulating last week to the effect that you could go to jail for annoying people with online postings.

This story had everything: anti-Bush sentiment; bad law snuck in by virtue of being hidden in unrelated legislation (the Violence Against Women and Justice Reauthorization Act of 2005); abridgement of Internet freedoms; infringement of the First Amendment; stupid politics; oh, you name it. Man, it's been better than the modem tax for flying around the world while the truth is still getting its Birkenstocks on. (You do know the modem tax is a hoax, right?)

But how true is it? Can I really go to jail if I deliberately start sending anonymous emails to annoy, say, Declan McCullagh, who wrote the story?

McCullagh, unlike most journalists who might write such a story, has been covering the Net since the early 1990s; he first came to my attention when he was involved in 1994 student protests against a policy Carnegie-Mellon University had adopted of censoring sex-related information from Usenet newsgroups. McCullagh has been on staff at Wired News, at Time Digital's Netly News, and now calls C|Net home. McCullagh, like all of us, has had to issue the odd correction in his time, most notably of his thoroughly debunked story that Gore claimed to have invented the Internet (not what Gore actually said).

The full text of the legislation is somewhere buried in here (you want section 113, "Preventing Cyberstalking") if you have time to dig further.

Of course, the only way we'll really find out is to wait and see who gets arrested and for what or who brings a lawsuit to enjoin the government from enforcing this law and how they fare in the US courts.? Annoy.com had plenty to say about its future. In the meantime, the legal types are having a fine old squabble over it (in public, for free, which I think is wonderful of them). So far, two - Daniel Solove and Orin Kerr - are arguing that the bill isn't as bad as all that - while Eugene Volokh, further down the page from Kerr's post, thinks the bill is just as troubling as the worriers are saying. Lawyers responding to posts on BoingBoing, however, argue that this law?is essentially irrelevant

(If you glance over these posts and detect a certain "Declan has it wrong" Schadenfreude, bear in mind that a lot of these folks have been sparring in cyberspace for a long time, and you're not seeing all the back story. You can tell a story is really confusing when you find yourself weighing up the credibility of the sources rather than the evidence itself.)

In email last night, McCullagh sticks by his story, noting that Kerr is a former Justice Department prosecutor while Volokh is a First Amendment scholar.

What everyone seems to agree on is that the law in question was intended to update the law that makes it a crime to harass someone by telephone. If you'd been awake for a week because some unidentifiable person had been dialling your number every ten minutes all night long, you could see the point of that. And no matter how the final reading of this law comes down in the end, the only Internet service that is that intrusive is VOIP, and then only if your VOIP calls come in on whatever phone rings all over your house. Email, Web postings, blog entries, instant messaging, and PC-to-PC VOIP are all things you only log into if you choose to do so. All of them have ways?- spam filters, privacy guards?- to let the user block out unwanted communications, at varying costs in time, money, or convenience to the user.

Meantime, there are, of course, plenty of ways to be annoying that don't involve directly communicating with anyone, and certainly can be without using the Net to do more than coordinate the campaign. We could send Bush bushels of correctly spelled potatoes. Or a few million cards thanking him for his donation to Planned Parenthood (most effective if the senders actually donate to Planned Parenthood, as was done once before). Or we could act in concert to put pictures of him dressed up as the fictional monkey Curious George everywhere as a one-day Web protest. Or make friends outside the US, and they can send the annoying messages with impunity. Any or all of those tactics could be applied to anyone you like.

Anonymity is a separate issue. In the past, we have generally been content to allow people to send anonymous letters through the post or make anonymous phone calls from phone booths while understanding that sometimes these facilities are going to be abused. Somehow, the authorities find anonymity more threatening in the Digital Age - or perhaps it's just that present technology allows them to try to do something about it.

So the bottom line seems to be this: either this law is superfluous or it's evil. In either case, the logical thing to do is get rid of it. But, with so many pieces of legislation demanding our attention ? data retention and ID cards in the UK; Real ID in the US; copyright everywhere - it's not clear that this is the most important thing on the list.Tags: cyberstalking, Declan McCullagh, Volokh?and Curious George. ?