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Tuesday, January 10, 2006

Why We Need the Courts

President Bush just signed the "Violence Against Women and Department of Justice Reauthorization Act of 2005". The title of this bill sounds excellent. There's a provision in this bill that clearly appears to violate the first amendment. From Declan McCullagh at CNET:

Buried deep in the new law is Sec. 113, an innocuously titled bit called "Preventing Cyberstalking." It rewrites existing telephone harassment law to prohibit anyone from using the Internet "without disclosing his identity and with intent to annoy."

To grease the rails for this idea, Sen. Arlen Specter, a Pennsylvania Republican, and the section's other sponsors slipped it into an unrelated, must-pass bill to fund the Department of Justice. The plan: to make it politically infeasible for politicians to oppose the measure.

The tactic worked. The bill cleared the House of Representatives by voice vote, and the Senate unanimously approved it Dec. 16.

There's an interesting side note. An earlier version that the House approved in September had radically different wording. It was reasonable by comparison, and criminalized only using an "interactive computer service" to cause someone "substantial emotional harm."

That kind of prohibition might make sense. But why should merely annoying someone be illegal?

There are perfectly legitimate reasons to set up a Web site or write something incendiary without telling everyone exactly who you are.

Think about it: A woman fired by a manager who demanded sexual favors wants to blog about it without divulging her full name. An aspiring pundit hopes to set up the next A frustrated citizen wants to send e-mail describing corruption in local government without worrying about reprisals.

In each of those three cases, someone's probably going to be annoyed. That's enough to make the action a crime. (The Justice Department won't file charges in every case, of course, but trusting prosecutorial discretion is hardly reassuring.)

In a response, posted to the CNET article, Dave Madden disputes McCullagh's interpretation of the law.

I believe you are misreading the law.
Reader post by: Dave Madden
Posted on: January 9, 2006, 3:43 PM PST
Story: Create an e-annoyance, go to jail

H.R.3402 Sec. 113 (a)(3)(C) in the case of subparagraph (C) of subsection (a)(1), includes 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 (as such term is defined in section 1104 of the Internet Tax Freedom Act (47 U.S.C. 151 note)).

Therefore the new wording applies only to instances arising under subparagraph (C) of subsection (a)(1).

The subsection referred to by the amended text is:
"(C) makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications;"

The presence of the phrase "Called number" pretty conclusively removed all internet communications such as blogs and message boards. This seems to be measure to close a loophole that existed for internet based phone call services like vonage, etc because there is clearly no called number with regard to blogs.

Dave Madden makes sense. If the provision works as McCullagh describes, this would be an excellent first amendment court case for those so-called "Activist Judges" to decide. This is the type of case the ACLU takes.

Matt from MN Publius swallows the CNET story without question. In the comments to the post, Matt concedes that he hates Mark Kennedy. Matt's language when he went after Judy Johnson, who was the Republican candidate running in the Plymouth/Minnetonka special election was over the top. I disagree with Judy about the marriage amendment - Judy told the strib she would vote for the Bachmann amendment if it reached the floor. Judy also had concerns that the amendment went too far with the legal equivalent language. The strib did not mention Judy's nuanced position on the amendment. When Judy wrote to the strib to get them to correct the record regarding her position on Intelligent Design creationism being taught in the public schools, she didn't mention that they had misrepresented her about the Bachmann amendment. Matt from MNPublius described the SD 43 race this way:

Basically the SD 43 race is a question of whether you want a moderate Democrat with years of experience in public advocacy and financial management or a right-wing loony who wants to erode our system of education into bible school. I think I know which one I support!

This is describes Michele Bachmann accurately. This does not describe Judy Johnson, who is a thoughtful candidate, who is interested in getting beyond talk show politics when it comes to the issues.

I stopped by and commented on this post:

I think you misrepresent Judy here. Her position on Intelligent Design Creationism is of legitimate concern. I heard what she said at the Chamber of Commerce Debate, and she blew that question.

She now has a letter to the editor in the strib saying that she does not support Intelligent Design Creationism in science classes.

Terri Bonoff is clearly a better candidate on the separation of church and state. Judy Johnson is a social conservative - and she doesn't try to hide that. It's not fair to call her a right wing loony.

I've got more coverage of this race on Lloydletta's Nooz.

Posted by: Eva Young | November 17, 2005 12:09 AM

It depends on how you take her initial statements in comparison to her retraction. I believe (and I think this makes more sense as well) that she realized how much of a liability what she said in the debate was and then tried to correct the damage after the fact. The StarTrib is standing by their story and you admit yourself that she blew the question. The real question now is what is most representative of her views: an on-the-spot remark to a question at a debate, or a prepared statement from her to a major newspaper. I put my money on the debate remark.

Posted by: Matt | November 17, 2005 01:32 PM

I am not defending Judy's answer to the question on Intelligent Design (I personally was appalled by that answer). I believe the strib had it correct.

I take issue with this: "but Johnson, boy howdy, this lady is a bit of a nut case," this: "I'm sorry, but if you think evolution should not be taught you are obviously too stupid to be a representative of the people." and this: "right-wing loony who wants to erode our system of education into bible school."

Michele Bachmann wants to do that. Judy Johnson is not interested in doing that.

MN Publius has good material on their site. They diminish their credibility when they say they "hate Mark Kennedy". I disagree with Mark Kennedy on his co-sponsorship of the Federal Bachmann Amendment and on his emphasis on social issues, but I don't hate him. I think the Republican Party made a big mistake in annointing him for the senate race. I happen to think Gil Gutnecht would have been the stronger and more serious candidate by far.