"Telecommunications Device"

Several years ago, I did a post dealing with one of the offenses created by 47 U.S. Code § 223. In it, I focused on the statute’s apparently making it a federal crime to use a “telecommunications device” to transmit communications with the “intent to annoy, abuse, threaten, or harass” any person who “receives the communications.”

In that post, I focused on whether the federal government (or a state, for that matter) can constitutionally make it a crime merely to “annoy” someone. I concluded that it isn’t; for my reasoning, check out that earlier post.

This post is about a different issue that arises under the same statute. I got a voicemail from a woman whom I won’t identify, for reasons that will become apparent in a moment. She wanted to know if the statute only applies to emails or if it also encompasses posting content online.

I don’t have much in the way of details in terms of what’s been happening to her “for almost 4 years”, but she said it’s “scared the hell out” of her. She said someone – I think she knows who is it but am not sure – has been posting things online that link her name with “rape porn” and other “pretty horrific” postings. She said she went to an assistant district attorney and to an FBI agent and both of them told her they can’t do anything about what’s happening to her, but also told her “not to go out alone”. That’s all I know, but I decided to address the question she raised in a blog post because others may be having the same problem.

(I’m not sure what statute this woman is thinking of suing under; at least one federal court has held that 47 U.S. Code § 223 is a criminal statute only. Dimeo v. Max, 433 F.Supp.2d 523 (U.S. District Court for the Eastern District of Pennsylvania 2006). This court threw out the plaintiff’s attempt to bring a civil suit under § 223 because it found that the statute does not create a private, civil cause of action for people who have been the victims of conduct prohibited by the statute.)

For the purposes of analysis, we’ll assume that whatever has been posted online was posted with the “intent to annoy, abuse, threaten, or harass” this woman who qualifies as the recipient of those communications. In other words, I’m assuming that the content of the communications falls within the prohibitions of 47 U.S. Code § 223(a)(1)(C). The issue we’re going to be dealing with is whether the person who posted the content online utilized the method prohibited by the statute. In a sense, we’re parsing what the statute means by “communicating” with the victim.

Section 223(a)(1)(C) of Title 47 of the U.S. Code makes it a crime to “utilize[] 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 . . . who receives the communications”. (emphasis added) Our presumptive victim read the content online, so we’ll also assume, for the purposes of analysis, that she “received” it.

The issue to be resolved is whether “utiliz[ing] a telecommunications device” only encompasses a direct transmission of content to the victim via email, instant messaging or any analogous means of transmitting content. There’s a good argument that it only encompasses this type of communication: As I noted in my earlier post on the statute, § 223(a)(1)(C) was added to the federal code in 1968 to criminalize phone harassment. In 1968, telephone harassment was necessarily one-to-one communication, i.e., A called B and harassed him/her. In 1968, average citizens didn’t have the capacity to broadcast communications; today, they do.

As I noted in my earlier post, in 1996 the Communications Decency Act, Public Law No. 104-104 sec. 502, 110 Stat. 56 amended § 223. The CDA expanded § 223(a)(1)(C) so that it encompassed the use of a "telecommunications device," as well as a telephone. That’s the version of the statute we’re dealing with. Telecommunications Act of 1996, P.L. 104-104, House Conference Report No. 104-458, 1006 WL 46795 (1996).

Section 223(h) defines certain of the terms used in the statute. Section 223(h)(1) provides as follows:

The use of the term `telecommunications device’ in this section--

(A) shall not impose new obligations on broadcasting station licensees and cable operators covered by obscenity and indecency provisions elsewhere in this chapter;

(B) does not include an interactive computer service; and

(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. . . .

Section 223(h)(1)(B) incorporates the definition of “interactive computer service” that is included in 47 U.S. Code §230(f)(2). Section 230(f)(2) provides as follows:

The term `interactive computer service’ means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

It looks to me like this definition encompasses ISPs; if I’m right, then the definition of “telecommunications device” in § 223(h)(1)(B) doesn’t include an ISP. That theory is supported by a comment a federal judge made in American Civil Liberties Union v. Reno, 929 F. Supp. 824 (U.S. District Court for the Eastern District of Pennsylvania 1996). After noting that this court was not required to resolve “the tension between the scope of `telecommunications device’ and . . . `interactive computer service’” as defined by what is now § 223(h)(1), he noted that it was

sufficient for us to conclude that the exclusion of § 223(h)(1)(B) is probably a narrow one (as the Government has argued), insulating an interactive computer service from criminal liability under the CDA but not insulating users who traffic in indecent and patently offensive materials on the Internet through those services.

American Civil Liberties Union v. Reno, supra. I think that’s probably right. I think the exclusion is a provision meant to immunize ISPs from liability for what users of their services do.

Since we’re analyzing § 223(a)(1)(C)’s applicability to content posted online, we can also rely on the definition of telecommunications device contained in § 223(h)(1)(C), which seems pretty expansive. Section 223(a)(1)(C) was added to the statute in 2006. Pub. L. 109-162, Title I, § 113(a), 119 Stat. 2987, Jan. 5, 2006. I found a law review article that analyzes the impact of this amendment under the principles of statutory construction. Ryan M. Hubbard, How I Learned to Stop Worrying and Love the Communications Decency Act, 2007 University of Illinois Journal of Law, Technology and Policy 345 (2007). This author concludes that under one those principles (at least), “it would seem that posting content to the Internet . . . would be covered by the statute.” 2007 University of Illinois Journal of Law, Technology and Policy at 358. He also concludes, later in his analysis, that the 2006 amendment was meant to clarify something the federal judge in American Civil Liberties Union v. Reno, supra, said in a footnote:

[T]he [American Civil Liberties Union v. Reno] judge read the definition of a `telecommunications device’ to include a modem and that of an `interactive computer service’ only to exclude entities such as Internet service providers. Thus, the [2006] amendment would seem to be not so much altering the definition, as merely clarifying it to reflect what has already been included in judicial interpretation of the definitions. The amendment language would provide positive guidance and clarification for the definition of a `telecommunications device’ but would not alter the definition from what the court had already interpreted the law to encompass. Under this definition, e-mail, Usenet, Web pages, and other postings to the Internet would all be covered by the statute. However, this would be due to the Communications Decency Act of 1996, not the most recent amendment.

2007 University of Illinois Journal of Law, Technology and Policy at 359-360.

And that, I’m afraid, is all I can find in terms of sources that address the issue we’re dealing with. When I first started looking into this, I was really surprised that there weren’t any cases dealing with this issue. Then as I thought about the conduct the statute is designed to criminalize, I realized that wasn’t so surprising, after all.

It isn’t surprising when you think about the dynamic involved in intentionally annoying, abusing, threatening and/or harassing someone by using a remote communications device (like a phone). Until relatively recently, as I noted above, you had to do this by directly contacting that person via telephone. I suspect, then, that the dearth of cases dealing with annoying, etc. a victim by posting content online is to some extent a product of how we think about this kind of conduct. We assume it has to be specifically directed at the victim because that’s how it was done in the past. I also suspect that the people who engage in this kind of activity enjoy directing this kind of conduct at the victim; they want to make the victim suffer, after all . . . and they probably want to know that the victim is suffering as a result of what they’ve done.

I don’t see why we have to limit the scope of the statute to how this was done in the past. I agree with the author of the law review article – I think the statute should (does?) encompass content that is posted online . . . even when the perpetrator doesn’t do anything to call the victim’s attention to what’s now out there. I don’t know if courts will agree with me or not.

So, there you have it . . . a pretty inconclusive analysis of the issue we started with. If anyone has any insights on this issue that I’ve missed, I’d like to hear them.