Commentary--The First Amendment to the U.S. Constitution safeguards freedom of speech. The right to speak freely generally includes the right to speak anonymously. And 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.
A law designed to thwart telephone harassment has been updated and signed into effect by President Bush. But this is troublesome. The newly updated law in part prohibits annoying Web postings or e-mails that do not disclose the true identities of the authors of this speech.
Let's drill down a bit.
While the U.S. constitution places an extremely high value on and provides protection for free speech, such speech is not completely unbridled. That is why our nation has a developed body of law pertaining to defamation. In a nutshell, if someone says something false about someone else that causes harm to that person, liability and monetary damages may be awarded.
In the context of the Internet, it is not uncommon for people to communicate using pseudonyms. That allows them to 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 so if they feel that they have been defamed.
To find out the identities of these anonymous Internet speakers, they at times must go to the Internet service providers that are the 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. 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. That's unless the party seeking disclosure can make a "prima facie" showing upfront 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 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 also has been clear that the term "telecommunications device...does not include an interactive computer service."
This means this law has not been aimed at Internet communications. Now comes the huge qualifier.
A small but important provision buried deep in last year's Violence Against Women and Department of Justice Reauthorization Act, which was just signed into law, now brings the reach of the above-quoted text home to the Internet. The provision in question 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."
What does this mean? The Communications Act provides for fines and imprisonment of up to two years for violations. But taken to a logical, if extreme, conclusion, it is possible that a person who makes a Web posting or who sends an e-mail 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 as well as 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 cyberstalking certainly should be prevented, we should be careful not to erode our constitutionally protected rights.
biography
Eric J. Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual property disputes. To receive his weekly columns, send an e-mail to ejsinrod@duanemorris.com with "Subscribe" in the subject line. The views expressed in this column do not necessarily reflect those of Sinrod's law firm or its individual partners.
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