January 10, 2006

Declan McCullagh E-annoyance

aka, Declan McCullagh Is At It Again.

Some assorted debunking, from various lawyers:


[Orin Kerr, January 10, 2006 at 1:12am]
A Skeptical Look at "Create an E-annoyance, Go to Jail":

Declan McCullagh has penned a column that is custom-designed to race around the blogosphere. It begins:

"Annoying someone via the Internet is now a federal crime. It's no joke. Last Thursday, President Bush signed into law a prohibition on posting annoying Web messages or sending annoying e-mail messages without disclosing your true identity. ... [ed: snip]"

This is just the perfect blogosphere story, isn't it? It combines threats to bloggers with government incompetence and Big Brother, all wrapped up and tied togther with a little bow. Unsurprisingly, a lot of bloggers are taking the bait.

Skeptical readers will be shocked, shocked to know that the truth is quite different. ...

[I can't help but think that when Orin Kerr at "Volokh Conspiracy" writes a post like the above, you know Declan has been utterly egregious.]


Daniel Solove

Declan's article is misleading. The provision extends a telephone harassment law to apply to email. Declan describes the provision as applying whenever a person "annoys" another: "A new federal law states that when you annoy someone on the Internet, you must disclose your identity."

But that's not what the law says. Instead it provides:

"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."

Note that "annoy" is part of the intent element of the statute -- it requires the intent to annoy, abuse, threaten or harass. Far from an anti-anonymity provision that applies whenever a person annoys another, it is merely a prohibition on harassment. Declan writes: "In other words, it's OK to flame someone on a mailing list or in a blog as long as you do it under your real name." I don't see any basis for the law to apply in this instance.

[Addition 1/12: http://www.nyu.edu/classes/siva/archives/002638.html

Ann Bartow

"I may be missing something, but I don't think either e-mail or web logs would be considered "telecommunications devices" that would be subject to the stated prohibitions (which, in fairness, are awfully vague)."


There's a legislative summary here: http://www.gop.gov/Committeecentral/bills/hr3402.asp

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.

[Sigh .. Why should I bother? What good does it do? It'll be the exact same credulity all around the next time Declan McCullagh makes up a story]

By Seth Finkelstein | posted in journo | on January 10, 2006 06:41 PM (Infothought permalink)
Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

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Well, actually, I probably wouldn't have come across the debunking if you hadn't written about/linked to it. Informing one otherwise informed person may not make it worth it to you, but I certainly appreciate it.

Posted by: Laura at January 10, 2006 07:46 PM

Thanks, Laura.

But it's still just a drop in the ocean :-(

Posted by: Seth Finkelstein at January 11, 2006 10:42 PM

There's a story in the queue at kuro5hin right now which basically regurgitates Declan's fear-mongering. I've linked this entry in the comments.

So now it's a slightly bigger and more noticeable drop.

Posted by: James at January 12, 2006 04:15 AM

interesting. did you do a search on links to the original article?

in any case, while i thank you sincerely for the expansion and clarification, i'm not sure i'm willing to accept the story as "debunked" at this point, so much as "provisionally deflated." i think there may be room for interpretation, both publically and in the courts. we'll see. it may well be deliberate overinterpretation. it may also be something more. i don't pretend to be well informed on the subject, and my own retransmission of the story was more in the spirit of curmudgeonliness.


Posted by: cigfrain at January 12, 2006 11:55 AM

You wrote: "you know Declan has been utterly egregious"

A-list bloggers are by definition egregious ("chosen, select, separated from the herd"). Did you mean "egregiously [adjective]"?

For us readers of your blog, Seth, you too are egregious. :-)

Posted by: BobK at January 12, 2006 01:10 PM


The original definition of egregious was as you describe. But like the word "nice", it's been through some serious changes of meaning since the 16th Century. It then meant "outstandingly good". Now it has come to mean "outstandingly bad" or "shocking" - to the point that when people write "egregiously bad", they are just writing a tautology.


The story might not have been comprehensively debunked, as the amendments might have opened up all sorts of loopholes. But it's clearly not the Chicken Little scenario that McCullagh painted. A lawyer would have to work really hard to prove that a comment posted on a forum like this was covered under the amended Act. And then they would have to demonstrate "intent to annoy" rather than just annoyance - they are two very different things.

Posted by: Chris Edwards at January 14, 2006 03:32 AM

Well, it's still an appreciated drop. But then, I grew up amongst drop-in-the-ocean academics, so perhaps I'm just accustomed to the phenomenon, or resigned to it.

Posted by: Laura at January 14, 2006 11:19 AM