SCN: CDA

[Steve]

x-no-archive: yes

========================

Suit Against Anonymous Pest Revives Online Speech Law

by Carl S. Kaplan


(NY Times)---A little-known federal law restricting indecent speech 
online that many lawyers thought was essentially dead has come 
back to life in Federal District Court in Manhattan, to the chagrin of 
some civil libertarians.  

The law, an attempt to refurbish for the Internet age some older 
statutes banning harassing phone calls, outlaws the use of a 
telecommunications device, like a computer modem, to transmit 
comments that are "obscene, lewd, lascivious, filthy or indecent" 
when the intent is "to annoy, abuse, threaten, or harass another 
person."  

It is a small surviving part -- section 223(a)(1)(A) -- of the 
Communications Decency Act of 1996. Two other better-known CDA 
provisions, which would have banned the online transmission of 
indecent speech to minors, were struck down by the United States 
Supreme Court as violations of the First Amendment in a landmark 
decision in 1997.  

Earlier this month, in what may be the first lawsuit of its kind, 
lawyers for an Internet company invoked the remaining part of the 
act in a suit against a persistent pest.  

In papers filed on April 11, New York-based About.com said that an 
unknown person had been invading many of the company's chat 
rooms since November 1999, including the alcoholism, dating and 
rodeo rooms -- and, while impersonating the identities of regular 
chatters, had flooded the rooms with "obscene, lewd, lascivious, 
filthy and indecent messages through interstate communications 
with the intent to annoy, abuse, threaten and harass other people."  

Because the company does not know the visitor's name, it sued the 
unknown computer user who left behind a specific set of IP 
addresses, the electronic footprints left on a Web server by any 
visitor to a site. These can often be traced back to an Internet 
service provider.  

A lawyer for the company, Gerald E. Singleton, said in an interview 
that he would soon issue subpoenas to various ISPs around the 
country in an effort to trace the defendant and unmask him. By filing 
a federal lawsuit, a lawyer gains the right to issue as many 
subpoenas as necessary to gather information about a defendant, 
without having to ask the court's permission.  

Although the complaint did not include any specific comments made 
by the defendant, Singleton characterized them as " lewd, very 
threatening sexual remarks" that "go way over the line."  

"The remarks are sexual and threatening, and many of them are 
obscene," Singleton said. The grounds of the lawsuit are that the 
comments are "harassing, annoying and threatening," he said.  

Many lawyers thought the portion of the CDA law cited in 
About.com's lawsuit was effectively buried in 1998. At that time, a 
special panel of the United States District Court for the Northern 
District of California in San Francisco dismissed a constitutional 
challenge to the law by the operators of Annoy.com, a site that 
allows users to anonymously send blistering e-mail messages to 
politicians. Annoy.com had argued that the government may not ban 
"indecent" speech, period, even if accompanied by an intent to 
"annoy."  

Instead of striking down the law as unconstitutional, in a 2-1 
decision, the three-judge panel saved the law by rendering it 
meaningless. The court adopted a statutory interpretation of the law 
that read it as banning just obscene speech, which, unlike indecent 
speech, is not protected by the First Amendment. The court's legal 
ruling technically applies only in the federal district in which the 
case was heard.  

A year later the United States Supreme Court issued a one-sentence 
ruling upholding the lower court's action in dismissing Annoy.com's 
complaint. But the Supreme Court did not say whether the district 
court's interpretation of the law was correct.  

As a matter of policy -- not law -- the narrow view of the online 
speech statute was adopted by the Justice Department. A 1998 
memorandum sent to United States attorneys advised them that the 
statute should be applied only to obscene communications.  

Chris Hansen, a lawyer with the American Civil Liberties Union who 
specializes in Internet speech, said that he had qualms about the 
apparent rebirth of the online speech law and its use as a means to 
unmask an anonymous speaker.  

"The private use of the law is particularly troubling to me," he said. 
"If you reject the district court's view and take a more expansive 
view, an awful lot of people could be rushing into federal court to 
stop all kinds of speech they find annoying."  

Hansen added that if the defendant in the About.com case posted 
obscene or threatening comments, company officials should have 
called the police. "Obscenity and legitimate threats are punishable," 
he said. But non-obscene, disturbing or annoying speech is 
protected by the Constitution, he said.  

Clinton D. Fein, president of ApolloMedia Corp., the San Francisco-
based company that runs Annoy.com and that originally challenged 
the online speech law, said that is a "terrible thing" for a company to 
run to federal court and rely "on a bad law" to silence and unmask 
someone.  

The About.com case is part of a growing trend of lawsuits that are 
filed in response to material placed anonymously on the Internet, 
lawyers said. Many suits of this type are filed by corporations 
alleging defamation against unknown speakers on financial bulletin 
boards.  

"The real objective of these suits is to obtain the identity of the 
wrongdoer," said Ian C. Ballon, a lawyer in Palo Alto, Calif., who 
specializes in Internet law. "Many people act with impunity on the 
Internet because they are able to do so pseudonymously. Once they 
are unmasked and identified they tend to back down."  

Ballon acknowledges that one possible problem with these 
unmasking efforts is that the legal basis for the underlying lawsuit 
may never be challenged, because in many cases the unknown 
defendant is not notified of the suit.  

Subpoenas will be issued by the lawyers, subpoenas will be served 
on ISPs, and many ISPs will disclose a subscriber's identity without 
giving notice to the subscriber that they are doing so. "By the time 
anyone cares to look at the merits, the plaintiff's objectives will 
have been met," Ballon said.  

For these reasons, Hansen of the ACLU said that his organization 
favors two protections for anonymous chatters. Any complaint filed 
in court against an unknown Internet defendant should include 
specifics of the allegedly objectionable postings, he said. Also, a 
judge should not allow a lawyer to issue subpoenas in these cases 
without requiring that the defendant, once identified by the ISP, be 
given an opportunity to enter court to seek to protect his anonymity. 
"The right to anonymous speech should not be breached so easily," 
Hansen said.  

For his part, About.com's Singleton said that he employed the 
controversial speech law in his case because it seemed to fit the 
actions of the defendant. "My interest is simply to pursue the 
identity of this person in the most economical fashion," he said.  

Although the federal speech law is a criminal statute, Singleton said 
that he believes private parties have a right to bring lawsuits under 
it. He also said that About.com tried in vain to erect an electronic 
gate to keep out the unknown defendant.  

"We'd block him, and then he would come back in under a different 
name," he said, adding later: "He's still invading our rooms."  


Copyright 2000 The New York Times Company





* * * * * * * * * * * * * *  From the Listowner  * * * * * * * * * * * *
.	To unsubscribe from this list, send a message to:
majordomo at scn.org		In the body of the message, type:
unsubscribe scn
==== Messages posted on this list are also available on the web at: ====
* * * * * * *     http://www.scn.org/volunteers/scn-l/     * * * * * * *