Orin Kerr refutes Declan McCullagh’s claim (Jan. 10) that Congress has outlawed anonymous Internet communications. Update: on the other hand, Eugene Volokh remains troubled. For reasons stated in the comments, neither Walter nor I are persuaded by Cal Lanier’s narrow interpretation.
Orin Kerr refutes Declan McCullagh’s claim (Jan. 10) that Congress has outlawed anonymous Internet communications.
Update: on the other hand, Eugene Volokh remains troubled. For reasons stated in the comments, neither Walter nor I are persuaded by Cal Lanier’s narrow interpretation.
5 Comments
I don’t find Kerr’s post as reassuring as all that. He points out that courts have read a First Amendment exception into telephone harassment law and says they would do the same to this law. That’s fine as far as it goes, but 1) courts are sometimes not as protective of the First Amendment as I wish when harassment-via-epithet is at issue (e.g. Aguilar v. Avis) and 2) Congress abdicates its responsibility when it purports to ban a large swath of action, some constitutionally protected and some not, and then leaves it to the courts to sort out which is which.
Although Cal Lanier in the Kerr thread claims that the bill is meant to apply only to VOIP, I think he’s clearly mistaken based on the same release from Sen. Domenici’s office that he cites. Sen. Domenici’s description of S. 113, in its entirety, reads: “To strengthen stalking prosecution tools, this section expands the definition of a telecommunications device to include any device or software that uses the Internet and possible Internet technologies such as voice over internet services. This amendment will allow federal prosecutors more discretion in charging stalking cases that occur entirely over the internet.” VOIP is only one example of what is covered. It certainly sounds as if the intent is to cover the use of email, for example. And I think letting the law jump from a concept of “harassing or stalking phone calls” to one of “harassing or stalking email” deserves, at a minimum, close scrutiny. (A barrage of phone calls from a former intimate at all hours of the day or night is one thing; a barrage of emails, another.) There is a further debate in the Kerr comments over whether “interactive” functions, such as message board comments, would be covered as well.
I think Orin Kerr misses the specific exclusion of “interactive computer services” from the definition of “telecommunications device”. I provide the cites in this explanation (the same one that Orin linked in).
Remember, the only change the VAWA made was to the definition of a telecommunication device. That definition already excluded interactive computer services from the definition, which should exempt all internet activity. However, that definition would exclude any voice-based internet activity–that is, VOIP and other “information services”. So the changes added text that excludes VOIP from the “interactive computer services” exemption.
Some people claim that the exemption has been overruled or is otherwise invalid. I doubt it. But if it’s true, then the changes didn’t cause the threat. The problem exists because the exemption of computer interactive services is invalid, and that exemption has been in there forever.
Cal, I think that misreads the statute. The VAWA specifically overrides the h(1)(B) exception you refer to. (You link to the Cornell replication of the US Code, which doesn’t include the VAWA amendment.) Anything that’s within the new (h)(1)(C) is written out of (h)(1)(B) for purposes of whether one is committing cyberstalking.
If it specifically overrides the h(1)(B) exception, why wouldn’t they just eliminate h(1)(B)? No, my take is that it was to exclude VOIP from h(1)(B) and solely for purposes of 223(a)(1)(C), as it says.
That text specifically refers to phone communications (called number, etc).
This may be more obvious to those who are aware that VOIP’s status as an information vs. telecommunication service has been a subject of hot debate at the FCC. It’s the first thing I thought of when I read the text, and I was surprised at the fuss.
Could it be misinterpreted? Sure, I suppose. I’m not a lawyer and leave that to you all. But the intent was pretty obviously to ensure that VOIP was not protected by the (h)(1)(B) exemption.
I address this more in the comments at VC–and should probably update my blog at some point.
h(1)(b) applies to more than just 223(a)(1)(c), so eliminating h(1)(B) would affect things other than (a)(1)(C).
I understand and agree that (h)(1)(C) adds VOIP to the a(1)(C) ambit. But it does more than just that. If something is out because of h(1)(B), but in because of h(1)(C), then it’s in, notwithstanding (h)(1)(B). (h)(1)(B) simply doesn’t inform this debate. You can argue that things other than VOIP are not “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.” But that text seems much broader than VOIP to me, due to the italicized text.