The Erosion of Anonymous Internet Speech
New Federal Law To Prohibit "Cyberstalking"

By ERIC J. SINROD
Friday, Jan. 27, 2006

The First Amendment to the United States Constitution safeguards freedom of speech in this country. The right to speak freely generally includes the right to speak anonymously. And the developing case law holds that the right to speak freely embraces the liberty to speak anonymously on the Internet.

All well and good, right? Wrong! Why?

A law designed to thwart telephone harassment has been updated and signed into effect by President Bush in a troublesome way. The newly updated law in part prohibits annoying Web postings or emails that do not disclose the true identities of the authors of this speech.

Let's drill down a bit.

As mentioned our Constitution places an extremely high value on and provides protection for free speech. Such speech, however, is not completely unbridled. That is why our nation, for example, has a developed body of law pertaining to defamation. In a nutshell, if someone says something false about someone else to others that causes harm to that someone else, there can be liability and monetary damages awarded.

In the context of the Internet, it is not uncommon for people to communicate using pseudonyms - so that they can speak freely and openly without revealing who they really are. Once in a while, other persons or companies want to find out the identities of anonymous people who have communicated on the Internet. This is especially the case if they feel that they have been defamed to their detriment.

To find out the identities of these anonymous Internet speakers, they at times must go to the ISP conduits of the speech at issue. To do that, a "John Doe" lawsuit usually is filed against the anonymous speaker at the heart of the matter, and from that case a subpoena is served on the ISP seeking the identity of the speaker. The anonymous speaker then has an opportunity to file what is called a motion to quash, which seeks to bar revelation of his or her identity.

The court then is called upon to rule whether the anonymous speaker's identity should be disclosed. Because of First Amendment guarantees of freedom of speech, which the cases hold includes the right to speak anonymously on the Internet, the court normally will err on the side of protecting the identity of the speaker unless the party seeking disclosure can make a "prima facie" showing up front in the case that the speech at issue truly creates liability and that true harm and damage has ensued.

Against this backdrop of protection of anonymous Internet speech comes the newly updated law.

The Communications Act, at 47 U.S.C. Section 223(a)(1)(C) has prohibited the making of telephone calls or the utilization of telecommunications devices "without disclosing [one's] identity to annoy, abuse, threaten, or harass any person at the called number or who receives the communications."

The same law, at 47 U.S.C. Section 223(h)(1)(B), has been clear that the term "telecommunications device . . . does not include an interactive computer service." Thus, this law has not been aimed at Internet communications. BUT . . .

A small but important provision buried deep in the Violence Against Women and Department of Justice Reauthorization Act of 2005, H.R. 3402, titled "Preventing Cyberstalking" and numbered as Section 113, which was just signed into law, now brings the reach of Section 223(a)(1)(C), quoted above, home to the Internet.

Specifically, Section 113(a)(3) provides that Section 223(a)(1)(C) applies to "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." Hello!

What does this mean? The Communications Act provides for fines and imprisonment of up to two years for violations. Thus, taken to a logical extreme conclusion, it is possible that a person who makes a Web posting or who sends an email that is intended simply to "annoy" someone else while not disclosing his or her true identity, could be subject to fines and jail time.

So much for freedom of speech - so much for appropriate Internet anonymity. There is no requirement of harm to trigger the impact of this new law, and the annoyance standard raises a number of concerns.

For example, certain speech could be true, but still annoying. Should such speech be stifled? Some "annoying speech" can lead to very positive change - whether the speech is directed at government, companies or individuals.

Plus, an annoyance standard is quite amorphous and subject to a multitude of interpretations.

While Cyberstaking certainly should be prevented, as the heading of Section 113 suggests, we should be careful not to erode our constitutionally protected rights.


Eric Sinrod is a partner in the San Francisco office of Duane Morris (www.duanemorris.com), where he focuses on litigation matters of various types, including information technology and intellectual property disputes. His Web site is (www.sinrodlaw.com), and he can be reached at ejsinrod@duanemorris.com. To receive a weekly e-mail link to Mr. Sinrod's columns, please send an e-mail with the word Subscribe in the Subject line to ejsinrod@duanemorris.com. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

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