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Annoy.com's Clinton Fein on new anti-annoying law

Annoy.com's Clinton Fein on new anti-annoying law
Annoy.com's Clinton Fein on new anti-annoying law



More on the new law:
http://news.com.com/2100-1028_3-6025396.html 
http://news.com.com/2010-1028_3-6022491.html 

Clinton (who is in a unique position to appreciate this law) also has a 
longer piece up here about his previous lawsuit against the Justice 
Department:
http://annoy.com/editorials/doc.html?DocumentID=100761 

-Declan

-------- Original Message --------
Subject: RE: Annoy Legislation
Date: Wed, 11 Jan 2006 03:59:00 -0800
From: Clinton D. Fein  
To: Declan McCullagh  

This is a response I just posted under the comments in your article.

"Whoever...utilizes 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... without disclosing
his identity and with intent to annoy, abuse, threaten, or harass any
person...who receives the communications...shall be fined under title 18
or imprisoned not more than two years, or both."

The annoying thing about hastily and ill-crafted legislation is that it
forces one to be pedantic, muddying rather than clarifying the law,
inviting legal challenges and outright violations. Remember, it depends
what is is.

Assuming for argument's sake that this law is designed to deal solely
with conduct rather than content issues, so its not that someone sends
you content you find annoying, but sends it hundreds of times, which you
find annoying.

If the language as amended above is to be taken on its face, the first
problem is with the word utilizes, since it doesn't clarify whether
utilizing it has to be for its intended telecommunication purpose.

Loudly setting off the alarm of my cell phone every two minutes whilst
attending a ballet doesn't change the fact that the device CAN BE USED
to originate communications that are transmitted, in whole or in part,
by the Internet. Or that I have not revealed my identity. Or that I have
not annoyed many people. Similarly, if I was to hold up my cell phone,
displaying an aborted fetus as the background image, and point it at
doctors entering or leaving an abortion clinic, without revealing my
identity, would that constitute *utilizing* a prohibited device and thus
a felony?

And if one is to assume that the device or software must indeed be used
to *originate* telecommunications or other types of communications that
are transmitted, in whole or in part, by the Internet, then the question
of *what* is transmitted becomes unclear. With Annoy.com postcards, for
instance, the sender uses the service to create a message which is then
published on Annoy.com's servers and inaccessible to the public. What is
actually transmitted to the recipient is a notification that they have
been sent a communication and provides them with a unique key that
allows them to retrieve it if they so choose.

In fact, with C|Net, I was able to forward this very article to me,
containing theoretically annoying content by spoofing Arlen Specter, and
C|Net (like most news publications that facilitate emailing content, but
unlike Annoy.com) actually sends the self-generated content in the email
notification itself, only linking to the story.

Ironically, a remaining provision of the CDA is what actually protects
third party content providers, and since Annoy.com does not monitor or
approve postcards, and therefore intent cannot be established,
prosecution is unlikely. Annoy.com's overall stated intent to annoy is
content based.

Nonetheless, I believe the law requires too many assumptions and remains
vague enough to warrant a constitutional challenge.

_____________________

Clinton Fein
555 Florida Street, #407
San Francisco, CA  94110
Mobile: 415.218.3590
Email: clinton@xq.com 
www.clintonfein.com 
_____________________
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