Monday, April 26, 2010

"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.


sburch79 said...

In the Comcast v FCC case the court cited orders that said the cable internet is not a telecommunications service. Since many people post to the Internet via cable Internet service, I wonder if that would affect the analysis?

Susan Brenner said...

That's a really good question. I looked at the Comcast v. FCC decision, and they rely on and in making that statement the court relied on the FCC's decision in In re Inquiry Concerning High-Speed Access, 17 F.C.C.R. 4798 (2002), which is apparently still valid.

As you note, in that decision the FCC was interpreting the meaning of the term "telecommunications service" as used in a different section of Title 17 of the U.S. Code: 47 U.S. Code section 153(46). Section 153(46) defines "telecommunications service" as "the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used".

From briefly reviewing the Comcast and In re Inquiry decisions, it looks to me like they're primarily concerned with whether something is a SERVICE. If that's true, then I don't think eithee decision is directly helpful in parsing the term telecommunication device as it's used in section 233.

Now, under the principle of statutory interpretation known as in pari materia (which you can read about if you follow the statutory construction link in the post itself), when a word in a statute is ambiguous you can consider how the word is used elsewhere in that legislation to help you figure out what the legislature meant.

Since both the section 153(46) definition of telecommunications service and the definition of telecommunications device used in the CDA were added by the same legislation, we could probably consider how the FCC and courts have parsed the definition of telecommunications service in deciding how to interpret the term telecommunications device.

I'm not sure that would really be helpful . . . since the two provisions are dealing with very different issues. As I noted in my post, section 223 is a criminal statute that was amended to update the former provision which made telephone harassment (only) a crime. Since the goal was to expand the type of technology that could be used to inflict this distinct criminal "harm," I'm dubious that the 153(46) definition will be dispositive of the issue.

But, of course, I could be wrong.

Thanks again for pointing this out.

Anonymous said...

I think this kind of law is terrible. If I can say it to your face then why should I also not be able to say it to you via email, phone, or whatever? i would think that it would be much worse face to face.

Putting something on the webpage or post is no different than something printed in the newspaper. So I don't see how this kind of conduct should be a crime. The communication is not being directed to you. It's more like a guy hollering into a megaphone on a street corner.

Being harassed, annoyed, bullied, etc., is just a part of life and you have to learn to deal with it. Everytime a commercial interupts my TV show I get annoyed. I feel harassed by the spam in my inbox. And i don't like it when my big brother picks on me. But that's life. I can sit and cry like a girl or man up and just ignore it all.

Anonymous said...

"Being harassed, annoyed, bullied, etc., is just a part of life and you have to learn to deal with it...I can sit and cry like a girl or man up and just ignore it all."

Do you think it is appropriate for someone to anonymously put up webpages that make it appear as if a doctor was writing illegal prescriptions for controlled substances?

Do you think it is appropriate for someone to anonymously put up webpages that make it appear as if a lawyer was engaging in jury tampering?

Do you think it is appropriate for someone to anonymously put up webpages that make it appear as if a teacher was a pedophile?

I could go on ad infinitum, but I think I've made my point.

When the harassment and bullying interferes with one's ability to conduct business, when it causes the individual being harassed to feel unsafe, and when it is done in such a way that the victim cannot defend themselves against damaging webpages because the perp has taken steps to hide his/her identity, then I have a problem with that.

Perhaps the anonymous individual should "man up", stop being a coward and accept responsibility for their handiwork.

Anonymous said...

The United States was basically founded upon anonymous speech. In McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995), the US Supreme Court reaffirmed that the First Amendment protects the right to anonymous speech. Anonymity, the court reasoned, helps speech stay free.

Talley v. California, 362 U.S. 60 (1960), was a case in which the Supreme Court of the United States voided a Los Angeles city ordinance which forbade the distribution of any handbills in any place under any circumstances if the handbills did not contain the name and address of the person for whom it was prepared, distributed, or sponsored.

Talley is often cited for the proposition that identification requirements burden speech.

But that is besides the point. (As an aside I don't have a clue as to what "posting things online that link her name with rape porn” means. I know that Google makes links when you type words into its search engine. So does that mean that if you type this woman's name into Google that links to rape web sites pop up?) If someone defames you then you have recourse via a lawsuit. Of course that is of little help if the person is out of the country or in another state.

But if you say that it should be a criminal offense for a person to make webpages that are directed at the population as a whole and not to any one specific person all because one person feels bullied, I think you are wrong.

If I can go into YOUR neighborhood and stick anonymous plamphlets under the windshields of all your neighbors in the middle of the night saying or doing all the nasty stuff complained of in the article, then why can't I do the same thing online?

The point I was trying to make is why make something criminal just because it happens online when the very same thing is not criminal when done in person or via a written pamphlet / letter?

I don't like speech for the KKK or illegal immigrants or 9/11 conspiracy theorists or speech that criticises the Republican Party and G.W. Bush. But that is part of free speech. Of course it is terrible that someone has to put up with 4 years worth of garbage from some fool trying to hassle her.

Anonymous said...

I would also like to make this other point with regards to what was said in the original article as well as address the points above with regards to postings on the internet:

anyone who doesn't like what is written about him on a blog or message board has a simple remedy: reach the same audience by writing your own comment, correcting anything you think is untrue.

I wish I could take credit for the following words, but I cannot.

"The advent of the internet dramatically changed the nature of public discourse by allowing more and diverse people to engage in public debate. Unlike thirty years ago, when “many citizens [were] barred from meaningful participation in public discourse by financial or status inequalities and a relatively small number of powerful speakers [could] dominate the marketplace of ideas” the internet now allows anyone with a phone line to “become a town crier with a voice that resonates farther than it could from any soapbox.” Through the internet, speakers can bypass mainstream media to speak directly to “an audience larger and more diverse than any the Framers could have imagined.” Moreover, speakers on internet chat rooms and blogs can speak directly to other people with similar interests. A person in Alaska can have a conversation with a person in Japan about beekeeping in Bangladesh, just as easily as several Smyrna residents can have a conversation about Smyrna politics.
Internet speech is often anonymous. “Many participants in cyberspace discussions employ pseudonymous identities, and, even when a speaker chooses to reveal her real name, she may still be anonymous for all practical purposes.” For better or worse, then, “the audience must evaluate [a] speaker’s ideas based on her words alone.” “This unique feature of [the internet] promises to make public debate in cyberspace less hierarchical and discriminatory” than in the real world because it disguises status indicators such as race, class, and age.

It is clear that speech over the internet is entitled to First Amendment protection. This protection extends to anonymous internet speech. Anonymous internet speech in blogs or chat rooms in some instances can become the modern equivalent of political pamphleteering. As the United States Supreme Court recently noted, “anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent.”

Chief Justice Steele, Supreme Court of Delaware. Doe No. 1 v. Cahill, 884 A.2d 451 (Del. 2005)

Anonymous said...

Please note that an exact phrase search for my name in the search engines yields the harassing results, which have linked to anything from hard-core porn or XXX dating sites to malware downloads.

Without going into specific details, the individual(s) doing this made it clear that the harassment was directed at me and not another person with the same name.

Based upon what I've read, trying to counter defamatory statements at bulletin boards may simply cause the situation to escalate; and if the defamatory statements are not on a bulletin board, but simply included on a web page, you can't respond to it.

After 18 months, an FBI agent expressed concern about the obsessive nature of this individual. The length of time devoted to harassing me, the voluminous amount of material being prepared for the Internet, references made under my name in the search engines to large caliber handguns and other weapons and an e-mail I received that described in the subject line what I'd worn to a function earlier in the evening caused the agent to 1) advise me not to go out alone; and 2) not put up a website from which to run my business. But that is as far as the agent would go.

My husband and I had hoped that the authorities would assist us, but we realize now that that will never happen. Now that my husband has been diagnosed with cancer, he realizes that this needs to be resolved, just in we have decided to retain an internet attorney. Hopefully, the attorney can help.

I appreciate the fact that you took the time to write this column. I'll stop back at some time in the future to let you know how things go.

Thank you. :)