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Tuesday, January 10, 2006 
"annoying" bill really about VoIP
a lot of people have been confused by declan mccullogh's cnet post about an amendment to the law that supposedly makes it illegal to post "annoying" comments online. and i was confused at first too; i admit it. but now i'm convinced that the law doesn't really do that at all: what it does is take the existing prohibition against telephone harrassment and extend that so it also applies to "internet telephony" technologies such as VoIP (voice over IP [internet protocol]).

VoIP is a service that allows you to make phone calls over the internet. when you make a traditional phone call, your voice is converted into signals that are sent over the phone wire to the receiver on the other end. VoIP and internet telephony circumvent this: when you make a phone call using VoIP, your voice is converted into digital data that is sent over the internet. the end result is the same, but the process is different.

i'm not the only one who's figured this out. football fans for truth explains why this update was considered necessary:

The previous law assumed that all phone calls would be made via a "telecommunications service" using a "telecommunications device". The FCC has consistently found that VOIP is an unregulated "information service", thus exempting it from all sorts of fees and services. A VOIP call may be functionally indistinguishable from a landline or cell phone call. Legally, though, it's not a telecommunications service and doesn't require the use of a telecommunications device. Adding the new text to the definition removes a potential loophole and ensures that VOIP calls will be treated just as any other telephone call.

so there was a loophole under the existing law that allowed people to make harrassing phone calls over VoIP when they legally couldn't do so using "real" telephones. the update to the law fixes this loophone, and nothing more.

this is not entirely intuitive if you look at the law, especially the way the law has been selectively quoted. you can make a quote...say anything...with ellipses. so let's take a closer look at the actual language.

while the update does add a short paragraph to the code relating to the internet, that code only applies to "subparagraph (C) of subsection (a)(1)". that section in unedited form said this (emphasis mine): interstate or foreign communications...makes a telephone call or utilizes 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 at the called number or who receives the communications...shall be fined under title 18 or imprisoned not more than two years, or both.

the original passage is clearly about phone calls. and the new additions don't delete any of that phone stuff, either.

this section, and only this section, has now been updated thusly:

'(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 (as such term is defined in section 1104 of the Internet Tax Freedom Act (47 U.S.C. 151 note)).'.

furthermore, let's scroll up and look at subparagraph (B), which falls immediately before the newly added text:

For purposes of this section...The use of the term "telecommunications device" in this section...does not include an interactive computer service.

"interactive computer service" is defined as

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.

furthermore, let's look at the other part of the amendment:

(b) Rule of Construction- This section and the amendment made by this section may not be construed to affect the meaning given the term 'telecommunications device' in section 223(h)(1) of the Communications Act of 1934, as in effect before the date of the enactment of this section.

i'm not a lawyer, and maybe all this passage really says is that the amendment isn't retroactive. but as i'm reading it, what this says to me is that the amendment isn't really changing the definition of "telecommunications device". and if the existing definition specifically excluded "interactive computer services", and the amendment doesn't change the definition, then this amendment simply does not apply to the internet.

if i'm misreading the bill, i invite you to correct me. but i'm pretty sure declan mccullogh is the one who's wrong here.

update: a commenter at volokh thinks the term "telecommunications device" includes modems, and points to a supreme court case that suggests it does. to be sure, it's all very confusing, and as the court itself says in that decision, "The resolution of the tension between the scope of "telecommunications device" and the scope of "interactive computer service" ... must await another day."

so while i stand by my statement that the amendment is intended to close a VoIP loophole, it is perhaps possible to read it in such a way that all trolling would be illegal. however, let us not forget that the law says "intent to annoy", not simply annoy, and that intent is extremely difficult to prove.

and—and this is the important part—if the definition of telecommunications device already included modems, then this amendment doesn't do much of anything at all. using a telecommunications device with intent to annoy, abuse, threaten, or harass was already illegal. the amendment specifically does not change the definition. ergo, if you interpret the law as meaning that anonymous trolling is illegal, then anonymous trolling was already illegal even before the amendment.

so it's a tempest in a teapot. the amendment absolutely does not 'rewrite... existing telephone harassment law to prohibit anyone from using the Internet "without disclosing his identity and with intent to annoy"' as declan mccullogh would tell you. depending on your interpretation, either the law does not say that even now, or it already said that even before the amendment.

way to go, declan mccullogh.


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