Internet Anonymity and the Communications Act of 1934
____ Background for Toxic Zen Stories ____________________
________ Table of Contents _______________________________
. First, To The News
. United States Code
. Title 47 - Telegraphs, Telephones,
. and Radiotelegraphs
. Chapter 5 - Wire or Radio Communication
. Subchapter II - Common Carriers
. Part 1 - Common Carrier Regulation
. Section 223 - Obscene or harassing
. telephone calls
. in the District of Columbia
. or in interstate
. or foreign communications
. Federal Communications Act of 1934
. The United States Constitution
. And Its Influences
. The United States Code
. And Influences Upon It
. Evidentiary Path Determination
. For Telecommunications
. Potential Federalization of Routing
. For Telecommunications
. What Is The New Code (Title 47)?
. What Is a Telecommunications Device ?
. What Isn't a Telecommunications Device ?
. What Is an Interactive Computer Service ?
. So ... Is It Safe? (Internet Anonymity)
. Codification Legislation
. Why Is Internet Anonymity Important, Anyway ?
. UPDATE: Progression Of Moves By the States
______ First, To The News _______________________________________
The latest news from the White House website ...
. President Signs H.R.3402, the "Violence Against Women
. and Department of Justice Reauthorization Act of 2005"
. On January 5, 2006, the President has signed into law:
. H.R. 3402, the "Violence Against Women and Department of
. Justice Reauthorization Act of 2005," which reauthorizes
. the Violence Against Women Act for FYs 2007-2011, makes
. amendments to criminal and immigration law, consolidates
. major law enforcement grant programs and authorizes
. appropriations for the Department of Justice for FYs
Seems innocuous, huh?
The question is: through H.R.3402, have we lost the ability, the right to anonymity while speaking freely on the Internet? The bill under question is called "Violence Against Women and Department of Justice Reauthorization Act of 2005" (Enrolled as Agreed to or Passed by Both House and Senate). That act, which was signed into law by President Bush appears to threaten our right to speak freely, without fear of Federal Prosecution for perpetrating criminal speech on the Internet. Are appearances deceiving?
The change in question, is to paragraph (1) of section 223(h) of the Communications Act of 1934. The correct form of this citation is ...
(47 U.S.C. 223(h)(1))
SEC. 113. Preventing Cyberstalking.
. (a) In General- Paragraph (1) of section 223(h) of the
. Communications Act of 1934 (47 U.S.C. 223(h)(1)) is
. (1) in subparagraph (A), by striking `and' at the
. (2) in subparagraph (B), by striking the period at
. the end and inserting `; and'; and
. (3) by adding at the end the following new
. `(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)).'.
. (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.
It is very difficult to understand this change, without looking at what it's changing, and the previous changes those are being applied to.
______ United States Code _______________________________________
______ Title 47 - Telegraphs, Telephones, and Radiotelegraphs
______ Chapter 5 - Wire or Radio Communication
______ Subchapter II - Common Carriers
______ Part 1 - Common Carrier Regulation
______ Section 223 - Obscene or harassing telephone calls
______ in the District of Columbia
______ or in interstate
______ or foreign communications
The affected law in its latest codified version (as of 2004) is located at: (http://uscode.house.gov/download/pls/47C5.txt
Here are the headings for that section for quick reference.
Title 47 - Telegraphs, Telephones, And Radiotelegraphs
Chapter 5 - Wire or Radio Communication
223. Obscene or harassing telephone calls in the District of
. Columbia or in interstate or foreign communications.
. (a) Prohibited acts generally.
. (b) Prohibited acts for commercial purposes; defense
. to prosecution.
. (c) Restriction on access to subscribers by common
. carriers; judicial remedies respecting
. (d) Sending or displaying offensive material to
. persons under 18.
. (e) Defenses.
. (f) Violations of law required; commercial entities,
. nonprofit libraries, or institutions of higher
. (g) Application and enforcement of other Federal law.
. (h) Definitions.
The 2004 version of section 223 has been amended so thoroughly SINCE 2004 as to be obsolete in the reading of it. (This, in and of itself, should be a worrisome indication.)
The area of activity is called "Title 47". A brief history follows ...
______ Federal Communications Act of 1934 _______________________
Title 47 of the U.S. Code was created by the Communications Act of 1934 and effectively re-written by the Telecommunications Act of 1996.
From the Wikipedia ...
The Communications Act of 1934 was a United States federal law enacted as Public Law Number 416 on June 19, 1934, by the 73rd Congress to replace the Federal Radio Commission with the Federal Communications Commission (FCC). It also transferred regulation of interstate telephone services from the Interstate Commerce Commission to the FCC.
The Act largely combined and reorganized existing provisions of law, including provisions of the Federal Radio Act of 1927 relating to radio licensing, and of the Mann-Elkins Act of 1910 relating to telephone service.
On January 3, 1996, the 104th Congress of the United States amended or repealed sections of the Communications Act of 1934 with the new Telecommunications Act of 1996. It was the first major overhaul of American telecommunications policy in nearly 62 years.
The Telecommunications Act of 1996 ... was signed into law by United States President Bill Clinton on February 8, 1996. The legislation regulates:
. * Broadcasting by over-the-air television
. and radio stations;
. * cable television operators;
. * satellite broadcasters;
. * Wireline telephone companies (local and long distance),
. wireless telephone companies, and others.
The general intention of the Act was deregulation and promotion of competition. The Act removed barriers which had previously prevented telecoms from competing head-to-head and thus the Act has fostered competition. However, deregulation was also intended to offer consumers a choice in local phone service. By 1999, 98% of homes had no choice in local service.
Passage of the Act resulted in several major mergers, including:
. * AT&T bought TCI;
. * Bell Atlantic and NYNEX merged;
. * Southwestern Bell and PacTel merged to become SBC
. and then bought Ameritech;
. * MCI Communications and WorldCom merged
. to become MCI WorldCom;
. * Bell Atlantic and GTE merged to become Verizon.
Title V was the Communications Decency Act, aimed at regulating online pornography but was later defeated in the courts on constitutional grounds by advocates of free speech.
______ The United States Constitution ___________________________
______ And Its Influences
. "It is not enough to have a good mind. The main thing is
. to use it well.
. ... The greatest minds are capable of the greatest vices
. as well as the greatest virtues."
. Rene Descartes (1596-1650)
. Le Discours de la Methode, I
There is an overriding document which limits the powers of Congress to enact laws, and the President to sign them into being, in the U.S. Code. Indeed, the Constitution has a higher "veto" than the President, and it arrives through the courts.
The principles of the U.S. Constitution originate with the political thinkers of the European Enlightenment, who were part of a group known as the "Philosophes".
The Philosophes were Deists, not Christians.
From the Wikipedia ...
. Newton's formulation of the three laws of motion and law
. of universal gravitation prompted many Europeans to
. approach all study of nature through reason and logic.
. The philosophes were a result of this new approach to
. learning who encouraged reason, knowledge and education
. as a way of overcoming superstition and ignorance.
. Philosophes Denis Diderot and Jean le Rond d'Alembert
. edited the Encyclopédie (1751-1772,) which represented
. the philosophe belief that everything could be known,
. classified and understood by man. It also questioned
. religious authority and criticized social injustice.
. They believed that the role of philosophy was to change
. the world, not just to discuss it.
. Because it was illegal to openly criticize the church
. and state in France, many wrote plays, novels,
. histories, dictionaries, and encyclopedias with subtle
. messages attached. An example is Montesquieu's Persian
. These philosophes influenced rulers, such as Frederick
. II, the Great of Prussia, Catherine II, the Great of
. Russia, Maria Theresa of Austria, and Joseph II of
. Although many philosophes disagreed with each other over
. certain principles the two major tenants the philosophes
. accepted were deism, and toleration.
. Deism: Many philosophes rejected organized religion as a
. means of holding back human progress. Those philosophes
. critical to religion claimed that Christianity prevents
. humans from seeking improvement in their conditions by
. teaching ideas such as predestination and original sin.
. Through doctrinal conflicts over minor differences in
. interpretation of biblical passages Religion promotes
. intolerance and bigotry. These philosophes were by no
. means atheists, however. Most believed that God was more
. like a divine watchmaker who created the world to be
. rational and orderly. The best method to worship God,
. the philosophes contended is to seek knowledge through
. logical and rational means.
So, Deism, while not necessarily atheism, is also not necessarily Christian.
Finally, from the Wikipedia ...
. Toleration: Many philosophes believed that toleration
. was the means to a virtuous life. They believed that
. toleration would combat the religious fanaticism that
. prevented humans from bettering their condition. This
. movement towards toleration was led by Voltaire in his
. Treatise on Tolerance and Gotthold Lessing in his play
. Nathan the Wise.
. Thomas Paine (January 29, 1737 – June 8, 1809),
. intellectual, scholar, revolutionary, and idealist, is
. widely recognized as one of the Founding Fathers of the
. United States. A radical pamphleteer, Paine anticipated
. and helped foment the American Revolution through his
. powerful writings, most notably Common Sense, an
. incendiary tract advocating independence from Great
. Britain. An advocate for political liberalism and
. constitutional republican government, he outlined his
. political philosophy in The Rights of Man, written both
. as a reply to Edmund Burke's view of the French
. Revolution and as a general political philosophy
. treatise. Paine was also noteworthy for his support of
. deism, taking its form in his treatise on religion The
. Age of Reason, as well as for his eye-witness accounts
. of both the French and American Revolutions.
I include the Philosophe Thomas Paine, not because he influenced the Constitution, his influence was really seen in the Declaration of Independence (through adoption of his ideas by Jefferson). I include him in this discussion to once again point out that the Founding Fathers of the American Revolution were not really Christian. They were Deists who were more like Paine, who was of an atheistic bent in his writing from prison, "The Age of Reason".
Of all the Philosophes, three of the thinkers of the Enlightenment stood apart in creating the political thought that led to the United States Constitution (through adoption of their ideas by Jefferson and Adams) and which led directly to the First and Second Industrial Revolutions.
They were Hobbes, Locke and Montesquieu (who had the most direct influence on the actual form of American government).
The European Enlightenment politically began with Hobbes and his "Leviathan" in 1651, where he offered his prescription to prevent the English Civil War he had experienced. In his view the absolute rule of Law was required, to contain the passions of humans in crisis, in such a way that politics based on science removes the discussions of mysteries and miracles ... and religious faith or the lack of it ... from the political dialectic. This was the passionate effort of a Deist in search of a rational faith to accomplish the final separation of Church and State. Furthermore, Hobbes sought the final rejection of the limitations imposed by tradition, with monarchies ruling as though administering God's will. Hobbes was wary (even pessimistic) of the unfortunate and chaotic side of human nature, which leads to civil war and terror from inside the state. For Thomas Hobbes, see (http://www.gutenberg.org/author/Thomas_Hobbes
Then, we have John Locke's "Two Treatises on Government" in 1689, which describes how humans are born with the natural rights to Life, Liberty and Property. He also states categorically that the people have the natural right to dissolve the government when it does not supply these three requirements adequately. For Locke, social well-being must of necessity include personal freedom and can only be found within the confines of limited governmental intrusion into personal liberties. According to Locke, "We are born as free as we are born Rational." The implications are that the liberty of a citizen is directly related to the rights he has to hold and keep property. Locke's views led directly to the Liberal revolutions in thought, government and economic development that fueled the Industrial Revolution. For John Locke, see (http://www.gutenberg.org/author/John_Locke
"Wherever Law ends, Tyranny begins." Locke, Second Treatise of Government , Sec. 202. One might also add that "Wherever Law undermines the Constitution, Tyranny reigns."
[Note that the Industrial Revolution was fueled by the LIBERAL revolutionary views maintaining the bourgeoisie or middle class, not Edmund Burke's Conservative reactionary views maintaining inherited wealth and power of the nobility or privileged class.]
From these two we arrive at the culmination of political thought of the Enlightenment, Montesquieu (Charles de Secondat, Baron de Montesquieu). In his "De l'esprit des lois" (The Spirit of the Laws; 1748) and through a painstaking empirical elaboration of all the historical cases, Montesquieu proves that despotism leads to stagnation of the culture and economy and then to chaos. His prescription for what ails human government is the Separation of Powers into the Legislative, Executive and Judiciary, and the Checks and Balances that led inevitably to the U.S. Constitution. Also Montesquieu suggested similar changes adopted in European states that had general appeal: freedom of thought, tolerance of religious differences, protection of individual liberties, and especially appealing to the conservatives, respect for an individual’s existing way of life. Montesquieu is considered the founder of the study of Sociology, because of his wide survey of laws and institutions in seeking the understanding of social and political behavior that can lead to stable societies and economies. For Montesquieu, see (http://www.constitution.org/cm/sol.htm
"Liberty is the right of doing whatever the laws permit.", Montesquieu, De l'esprit des lois, XI, 3.
"Useless laws weaken the necessary laws", Montesquieu, De l'esprit des lois, XXIX, 16.
With the political changes which came from the work of these three men, Great Britain created an economic environment which allowed, for the first time, the bourgeoisie to innovate in entrepreneurial enterprise and to accumulate the capital of Adam Smith, without fear of having it removed from them at the point of success. Free enterprise which results in real technical and social progress requires financial investment ... Liberty equals Property Rights. Political reform in the modern era was the single most important thing which allowed the Industrial Revolution to occur, first in Britain and then the rest of the West.
______ The United States Code ___________________________________
______ And Influences Upon It
In the U.S. Constitution, the elements which influence the law in the U.S. Code, in the area of our interest, are
. (1) The U.S. Constitution overrides the U.S. Code.
. (2) The U.S. Code cannot regulate commerce which is
. within a state, only interstate and foreign trade.
. (3) Property rights ARE Liberty and should only yield to
. the Liberty of others, NOT governments (Justice
. Souter and eminent domain, take note).
. (4) The First Amendment to the U.S. Constitution, which
. is part of the Bill of Rights, states that the
. government may not establish a religion, and that it
. must ensure freedom of religion, press, assembly,
. and speech (from Wikipedia).
It is the U.S. Constitution itself, that is most strongly driving the current state of the law in Title 47's regulation of telecommunications in regards to freedom of speech.
First, this is because only point-to-point communications can be determined to have both points either within a state (and then completely unregulated by Title 47) or to be interstate, foreign or within the District of Columbia (and therefore, regulated by Title 47). This is a completly different topic from violations of other Federal Law which occur involving communications, or computer networks, such as bank fraud, etc. In those cases, it is not so much what you said, but what you did: theft of property and other obvious crimes are not a free speech issue.
Second, there is a critical differentiation between communications requiring a "Telecommunications Device", and activity using an "Interactive Computer Service". The Devices can have enforceable federal legislation regulating their common usage, whereas the common usage of Services would appear to be beyond enforcement at the federal level (for now). It is in the common usage that the free speech issues arise, not in criminal usage. And defining common usage as criminal speech is not an adequate argument for allowing the intrusion of Federal power beyond the Federal jurisdiction already established by the Constitution and precedent.
______ Evidentiary Path Determination ___________________________
______ For Telecommunications
For telecommunications, routing and path information are hard to come by. Therefore, the permanent records of routing and path information which are necessary for evidence in court, are even less reliable.
This means that although the flow of bits in transmissions of telecommunications may cross state lines, it is hard to determine precisely which bits did cross on a specific call or text message in the past.
So, the courts must use the location of the two ends of the point-to-point telecommunications event (call, voice messaging or teletext messaging) to establish jurisdiction. This implies that where voice and teletext messages are stored is immaterial (at least so far). It is where your intended message was bound that determines jurisdiction (whether it is Federal or State).
For services that are not point-to-point, which put data on disks in a network, which data is then served up in some demand-based fashion to a small or large set of users at their discretion ... this is much more of a complex issue in terms of evidence of federal jurisdiction: whether the boundaries of interstate, foreign or District of Columbia have been breached.
For those kinds of services, the two ends of the reliably determined transaction are the sender/poster end and the server disk. This transaction is completed before anyone has uploaded/played the file, surfed the webpage, read the email, synchronized the newsgroup message, or opened the chat window.
These operations are much more like a separate publish operation to a server, followed by a subscribe operation to a service with one or more implicit uploads of a (hopefully) coherent collection of data.
For interactive services, it would take a nearly universally-used search service like Google, to determine a pattern of usage that might be convertible into an evidentiary tool for jurisdictional determinations in future laws. [Heh.]
At that point (my prediction) all servers will become writer-local and services will become reader-remote, precisely to evade the problem of federal intrusion into internet commerce, and internet free speech.
That is a farther, or nearer spectre, depending on Google's determination to resist the Justice Department. Let's talk about what might happen with telecomunications devices, in the very near term.
______ Potential Federalization of Routing ______________________
______ For Telecommunications
The Federal jurisdictional limitations for telecommunications device regulation may change, if Homeland Security deems it necessary to require that transmitted telecommunication bit streams be forced across state lines to come under federal jurisdiction (call this "federalization"). I don't believe this has happened yet, in a way that can be shown as evidence in a court of law.
Also, the federalization of transmission streams would seem to become more difficult, not less difficult, as carriers get larger and more decentralized, with greater cell coverage or more POPs (points of presence in land line telephony). The overall complexity of the telecommunications network reduces the ability to arbitrarily distort the networking rules.
To clarify my point, federalization is NOT necessary for spying a la Bush/NSA, it is only necessary for prosecuting criminal speech cases against those running afoul of a section in Title 47: the 1934 Communications Act. (Apparently there will be no limits under the law to restrain the Bush/NSA's wide powers to spy on American citizens, with the support of the new Cabinet Level Supreme Court, and Roberts as the Cabinet Secretary.)
______ What Is The New Code (Title 47)? _________________________
(tip of the hat to Nursevic, for his initial look at this. - Chas.
The code that has changed since 2004, and which is of interest here is cited as (47 U.S.C. 223(a)(1)(C)) labelled "(a) Prohibited acts generally", which has a modified meaning due to the next citation, which is cited as (47 U.S.C. 223(h)(1)(C)) labelled "(h) Definitions." and this has been modified directly in H.R.3402, and transforms the meaning of (a).
Then, there is the code still located at (47 U.S.C. 223(h)(1)(B)), and still defined by (47 U.S.C. 230(f)(2)), whose meaning limits the unbounded nature of the new transformed (h).
I have capitalized the points of focus in the law below, for easier location, and have indented things to be more readable, dropping the irrelevant parts.
Title 47 - Telegraphs, Telephones, and Radiotelegraphs
Chapter 5 - Wire or Radio Communication
Section 223. Obscene or harassing telephone calls in the
. District of Columbia or in interstate or foreign
. (a) Prohibited acts generally.
. Whoever -
. (1) in interstate or foreign communications -
. (A) by means of a telecommunications device
. knowingly -
. (i) makes, creates, or solicits, and
. (ii) initiates the transmission of,
. any comment, request,
. suggestion, proposal, image,
. or other communication which
. is obscene, lewd, lascivious,
. filthy, or indecent, with
. intent to annoy, abuse,
. threaten, or harass another
. (B) by means of a telecommunications device
. knowingly -
. (i) makes, creates, or solicits, and
. (ii) initiates the transmission of,
. any comment, request,
. suggestion, proposal, image,
. or other communication which
. is obscene or indecent,
. knowing that the recipient of
. the communication is under 18
. years of age, regardless of
. whether the maker of such
. communication placed the call
. or initiated the
. (C) 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;
. (D) makes or causes the telephone of another
. repeatedly or continuously to ring, with
. intent to harass any person at the called
. number; or
. (E) makes repeated telephone calls or
. repeatedly initiates communication with a
. telecommunications device, during which
. conversation or communication ensues,
. solely to harass any person at the called
. number or who receives the communication;
. (2) knowingly permits any telecommunications
. facility under his control to be used for any
. activity prohibited by paragraph (1) with the
. intent that it be used for such activity,
. shall be fined under title 18 or imprisoned not
. more than two years, or both.
. ... [skip (b) through (g)]
. (h) Definitions.
. For purposes of this section—
. (1) 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; ["and" was deleted here]
. (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 (AS SUCH
. TERM IS DEFINED IN SECTION 1104 OF THE
. INTERNET TAX FREEDOM ACT (47 U.S.C. 151
. (2) The term "interactive computer service" has the
. meaning provided in section 230 (f )(2) of this
. (3) ... [skip the rest of (h)]
Title 47 - Telegraphs, Telephones, and Radiotelegraphs
Chapter 5 - Wire or Radio Communication
Subchapter II - Common Carriers
Part I - Common Carrier Regulation
Section 230. Protection for private blocking and screening of
. (a) Findings
. The Congress finds the following:
. (1) The rapidly developing array of Internet and
. other interactive computer services available
. to individual Americans represent an
. extraordinary advance in the availability of
. educational and informational resources to our
. (2) These services offer users a great degree of
. control over the information that they receive,
. as well as the potential for even greater
. control in the future as technology develops.
. (3) The Internet and other interactive computer
. services offer a forum for a true diversity of
. political discourse, unique opportunities for
. cultural development, and myriad avenues for
. intellectual activity.
. (4) The Internet and other interactive computer
. services have flourished, to the benefit of all
. Americans, with a minimum of government
. (5) Increasingly Americans are relying on
. interactive media for a variety of political,
. educational, cultural, and entertainment
. (b) Policy
. It is the policy of the United States—
. (1) to promote the continued development of the
. Internet and other interactive computer
. services and other interactive media;
. (2) to preserve the vibrant and competitive free
. market that presently exists for the Internet
. and other interactive computer services,
. unfettered by Federal or State regulation;
. (3) to encourage the development of technologies
. which maximize user control over what
. information is received by individuals,
. families, and schools who use the Internet and
. other interactive computer services;
. (4) to remove disincentives for the development and
. utilization of blocking and filtering
. technologies that empower parents to restrict
. their children’s access to objectionable or
. inappropriate online material; and
. (5) to ensure vigorous enforcement of Federal
. criminal laws to deter and punish trafficking
. in obscenity, stalking, and harassment by means
. of computer.
. ... [skip (c) through (e)]
. (f) Definitions
. As used in this section:
. (1) Internet
. The term "Internet" means the international
. computer network of both Federal and non-
. Federal interoperable packet switched data
. (2) Interactive computer service
. 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.
. (3) Information content provider
. The term "information content provider" means
. any person or entity that is responsible, in
. whole or in part, for the creation or
. development of information provided through the
. Internet or any other interactive computer
. (4) Access software provider
. The term "access software provider" means a
. provider of software (including client or
. server software), or enabling tools that do any
. one or more of the following:
. (A) filter, screen, allow, or disallow content;
. (B) pick, choose, analyze, or digest content;
. (C) transmit, receive, display, forward, cache,
. search, subset, organize, reorganize, or
. translate content.
With these three citations, it is now possible to see what Congress has done so far.
In (47 U.S.C. 223(a)(1)(C)), the definition of the prohibited act (to anonymously annoy) with a prison term attached, had been expanded and was focused on the usage of "telecommunications devices", specifically.
In (47 U.S.C. 223(h)(1)(C)), the definition of what constitutes a "telecommunications device" is now expanded to the limitless horizon of networking computers on the internet.
However, the limiting clause in (47 U.S.C. 223(h)(1)(B)), which specifically excludes "interactive computer services" from the prohibited usage in (47 U.S.C. 223(a)(1)(C)), is still defined by (47 U.S.C. 230(f)(2)). So the horizon is chopped back in an interestingly obtuse and dislocated way. And this avoids any Constitutional conflict, until ... the Codification (below).
Ultimately, the intent is obvious in (47 U.S.C. 230(b)(5)) ... "to ensure vigorous enforcement of Federal criminal laws to deter and punish ... harassment by means of computer."
Hence, the annoying ananymous culprit must be thrown in Federal Prison.
______ What Is a Telecommunications Device ? ____________________
A telecommunications device is (apparently) ...
. Any phone.
. Any landline phone.
. Any VOIP phone.
. Any cellphone.
. Any Windows PDA cellphone:
. Dell Axim.
. HP iPAQ.
. Palm Treo.
. Asus MyPal.
These are all obvious telecommunications devices under this law.
Slightly less obvious are the beepers, the Blackberry and anything like that. They really do both, but you will get busted as one, not the other.
And, fax machines, and everything like them are also telecommunications devices (phone on both ends). So, look out Kinko's.
Then there is the phrase in (47 U.S.C. 223(h)(1)(C)), which categorizes telecommunications devices with the phrase "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". Yeah, that's the one.
So when your computer has a VOIP software installed and operating, with an internet connection and is sending voice or data, it is a "telecommunications device" since it's sending point-to-point. And maybe once it is in this category, it is sticky, and the law applies thereafter, no matter what software you are using ... it's still the same device. And since every Windows XP computer has fax software installed on it ... once a "telecommunications device", always ...
Interestingly, I think an internet-connected Xbox, PS2 or any video game console could fall under this category, too. Gamers talk to teammates using voice circuitry. They are doing voice over IP.
And here is an article on that point, referenced on Slashdot (I edited the cursew**ds):
. Updated: Thursday, 16 February 2006
. Report: Swearing in Online Games
. By Colin Campbell
. An online games player has conducted a limited study
. into swearing on Xbox Live. He heard someone swear once
. every three minutes, on average. Click through for
. findings. Note: This feature includes offensive
. Image In a period of about 30 hours of play on Xbox
. Live, blogger Josh Smith heard cussing, an average 20
. times an hour; once every three minutes. The word 'f**k'
. was the most common swearword, rating 8.11 uses per
. Highly offensive racist, homophobic and sexist language
. also featured prominently.
. On his blog earlier this month, Smith wrote, "When you
. log-on to Xbox Live, more often then not you will be
. greeted by a 14-year-old who learned a new word on the
. playground that day. Or maybe it’s the drunken 24-year-
. old who hates black people, gays and anyone who isn’t in
. his frat.
. "No matter who you are if you have played on Live you
. have run into cursing and lewdness."
. Smith says he wanted to highlight the problem of
. swearing on online games services, but is not a
. campaigner for regulation against games. He says parents
. should be aware that many online games players are not
. More here. (http://www.imjosh.com/?p=244#more-244
So, Congress takes aim at the gamers.
______ What Isn't a Telecommunications Device ? _________________
______ What Is an Interactive Computer Service ?
An interactive computer service is specifically excluded from being a telecommunications device. For now.
A boat anchor non-connected PC is not a tele-device. And I think that's about it. (Let's ignore other inanimate objects and all living things, here.)
As I said above, for services that are not point-to-point, which put data on disks in a network, which data is then served up in some demand-based fashion to a small or large set of users at their discretion ... for those kinds of services, the two ends of the reliably determined transaction are the sender/poster end and the server disk. This transaction is completed before anyone has uploaded/played the file, surfed the webpage, read the email, synchronized the newsgroup message, or opened the chat window. These operations are much more like a separate publish operation to a server, followed by a subscribe operation to a service with one or more implicit uploads of a (hopefully) coherent collection of data.
Clearly, if you stay away from the Federal Jurisdiction, you can avoid foolish prosecution, by over-zealous prosecutors, due to those who might be annoyed by your "free speech".
So, if you post anonymously to Google Groups (Mountain View, CA) and you use an internet connection out of Netscape Communications (Mountain View, CA) that would seem to avoid any Title 47-ish trouble. For now.
And one could always visit Canada, and post to a Canadian usenet posting service, or Fiji, or France, or ... anywhere but the United States.
______ So ... Is It Safe? (Internet Anonymity) __________________
No it isn't. (The drill grinds in on your unanaesthetized molar, painfully.)
First, Congress is encroaching on free speech in an all too leisurely, evil manner. This is disturbing: the banal, arrogant and middle-manager approach that Arlen Specter, et al takes: (1) the willing obfuscation of the law, (2) threatening one's rights at first glance, (3) while avoiding constitutional conflict indirectly, and (4) leaving the door open to a nasty invasion of internet anonymity.
When I look at the bill information on the Thomas.Gov website (http://thomas.loc.gov/cgi-bin/bdquery/z?d109:HR03402:@@@L&summ2=m&
), I'll be damned if I can identify where this evil was done with any certainty. I know it's in there, but I can't find it. However, the original sponsors, and their co-conspirators are listed ...
. Rep Bachus, Spencer [AL-6] - 7/27/2005
. Rep Brown-Waite, Ginny [FL-5] - 7/22/2005
. Rep Cannon, Chris [UT-3] - 7/28/2005
. Rep Coble, Howard [NC-6] - 7/22/2005
. Rep Conyers, John, Jr. [MI-14] - 7/22/2005
. Rep Gibbons, Jim [NV-2] - 7/28/2005
. Rep Gohmert, Louie [TX-1] - 7/28/2005
. Rep Green, Mark [WI-8] - 7/22/2005
. Rep Jackson-Lee, Sheila [TX-18] - 7/28/2005
. Rep Lofgren, Zoe [CA-16] - 7/26/2005
. Rep Nadler, Jerrold [NY-8] - 7/28/2005
. Rep Poe, Ted [TX-2] - 7/26/2005
. Rep Pryce, Deborah [OH-15] - 7/28/2005
. Rep Sanchez, Linda T. [CA-39] - 7/28/2005
. Rep Schiff, Adam B. [CA-29] - 7/22/2005
. Rep Scott, Robert C. [VA-3] - 7/28/2005
. Rep Solis, Hilda L. [CA-32] - 7/22/2005
. Rep Waters, Maxine [CA-35] - 9/20/2005
. Rep Weiner, Anthony D. [NY-9] - 7/22/2005
When the bill was introduced there were many grateful speeches, which listed the names of staff and others involved.
Someone in this list was responsible for this evil act against the Constitution, perpetrated in the name of good ... or actually an expedient reaction against some fear that rending the Constitution WILL NOT REMEDY.
. CONGRESSIONAL RECORD -- SENATE
. Friday, December 16, 2005
. 109th Congress, 1st Session
. 151 Cong Rec S 13749
. REFERENCE: Vol. 151, No. 162
. SECTION: Senate
. TITLE: DEPARTMENT OF JUSTICE APPROPRIATIONS
. AUTHORIZATION ACT, FISCAL YEARS 2006 THROUGH 2009
. SPEAKER: Mr. SANTORUM; Mr. LEAHY; Mr. BROWNBACK; Mr.
. KENNEDY; Mr. COBURN; Mr. KYL; Mr. BIDEN
. TEXT: [*S13749]
. Mr. SANTORUM . Mr. President, I ask unanimous consent
. that the Committee on the Judiciary be discharged from
. further consideration of H.R. 3402 and the Senate
. proceed to its immediate consideration.
. I ask unanimous consent that the amendment at the desk
. be agreed to, the bill, as amended, be read a third time
. and passed, the motion to reconsider be laid upon the
. table, and any statements relating to the measure be
. printed in the Record.
. The PRESIDING OFFICER. Without objection, it is so
. The amendment (No. 2681) was agreed to.
. (The amendment is printed in today's Record under "Text
. of Amendments.")
. Mr. LEAHY ...
. I thank my colleagues again for supporting the final
. passage of this compromise package so that all of this
. bipartisan and bicameral work, as well as all the good
. that this legislation will do, will reach the
. President's desk and become law. And again I
. particularly want to thank Senate Judiciary Chairman
. Specter and Senators Biden and Kennedy, who worked so
. hard to help construct a good, fair and balanced
. compromise. Likewise, I want to thank Chairman
. Sensenbrenner and Representative Conyers of the House
. Judiciary Committee for working with us to conclude
. these negotiations so successfully.
. The staffs of these Members must also be recognized for
. their tireless work around the clock to bring so many
. pieces together into a winning package. In particular,
. the House Judiciary Committee staff has been enormously
. helpful, including Phil Kiko, Katy Crooks, Brian
. Benczkowski, George Fishman, Cindy Blackston, Perry
. Apelbaum, Sampak Garg, Stacey Dansky and Kristin Wells.
. The Senate Judiciary Committee staff has shown
. outstanding commitment to this legislation. I want to
. thank Mike O'Neill, Brett Tolman, Lisa Owings, Joe
. Jacquot, Juria Jones and Hannibal Kemerer with Chairman
. Specter; Louisa Terrell, Eric Rosen and Marcia Lee with
. Senator Biden; and Janice Kaguyutan and Christine
. Leonard with Senator Kennedy. Last, but by no means
. least, I want to commend members of my own staff_Bruce
. Cohen, Ed Pagano, Tara Magner, Matt Nelson and Jessica
. Berry_for their unfailing support for these provisions,
. and for their hard work in bringing this compromise
. package to the floor.
. I look forward to both Senate and House passage of this
. bipartisan, bicameral package to reauthorize the
. Violence Against Women Act and the Department of
. Justice. Mr. President, this is an important piece of
. legislation that will make a difference in the lives of
. millions of Americans, and it deserves our full support.
. Mr. KENNEDY ...
. Mr. President, I strongly support the Violence Against
. Women Act of 2005, and I commend Senator Biden, Senator
. Specter, Senator Leahy and Senator Hatch for their
. bipartisan leadership on this very important
. legislation. The current authorization for the act
. expired on September 30, and it has taken far too long
. to build upon the successes of existing anti-violence
. against women programs and enhance the safety and
. security of the victims of domestic violence, dating
. violence, sexual assault, and stalking.
. I also thank Chairman Specter and Senator Biden for
. including this important provision.
. Mr. BIDEN ...
. I have many partners here in the Senate and in the House
. of Representatives who have worked tirelessly on this
. bill. Chairman Sensenbrenner and Ranking Member Conyers
. were committed to reauthorizing the Violence Against
. Women Act, and spent countless hours working on a
. resolution. Our negotiations were model ones_I wish
. bicameral relations were always so easy.
. Senator Reed and Senator Allard were very helpful on the
. act's housing provisions, and Senator Enzi helped craft
. some of the victim service providers. I appreciate their
. assistance and help to move this bill forward. With
. respect to the Native American provisions, Senator
. McCain and Senator Dorgan provided instrumental
. Since 1990, Senator Hatch and I have worked together to
. end family violence in this country, so it is no great
. surprise that once again he worked side-by-side with us
. to craft today's bill. I am also deeply indebted to
. Senator Kennedy for his unwavering commitment to
. battered immigrant women and his work on the bill's
. immigration provisions. Senator Kennedy's staff,
. particularly Janice Kaguyutan, have been invaluable to
. this process. I also thank Senator Leahy who has long-
. supported the Violence Against Women Act and, in
. particular, has worked on the rural programs and
. transitional housing provisions. As Ranking Member of
. the Judiciary Committee, Senator Leahy has consistently
. pushed forward reauthorization of the Violence Against
. Women Act, and his staff, chief counsel Bruce Cohen,
. Tara Magner, and Jessica Berry have worked hard for
. passage. My final appreciation is for my very good
. friend from Pennsylvania for his commitment and
. leadership on this bill. It is a pleasure to work with
. Chairman Specter, and his staff Brett Tolman, Lisa
. Owings, Joe Jacquot, Juria Jones and chief counsel Mike
. O'Neill. From day one, Chairman Specter has been one of
. this bill's biggest champion. Chairman Specter is the
. reason a bipartisan, bicameral compromise measure is
. being passed today and I thank him.
. Mr. President, I ask unanimous consent that the section-
. by-section analysis be printed in the Record.
. There being no objection, the material was ordered to be
. printed in the Record, as follows:
. Section-by-Section Summary of the Violence Against Women
. Act of 2005
. Sec. 113. Preventing Cyberstalking. To strengthen
. stalking prosecution tools, this section amends the
. Communications Act of 1934 (47 U.S.C. 223(h)(1)) to
. expand 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.
Out of the 67 or so names listed, the names that stick out to me are: "... Chairman Specter, and his staff Brett Tolman, Lisa Owings, Joe Jacquot, Juria Jones and chief counsel Mike O'Neill."
This last-minute sneak attack on the Constitution, sounds like their work, since they are the persons most capable of these last minute additions.
______ Codification Legislation _________________________________
So, what is this codification thing, that is done so quietly, so automatically. From the House website ...
. Codification Legislation
. Office of the Law Revision Counsel
. What Is Positive Law Codification?
. Positive law codification is the process of preparing
. and enacting, one title at a time, a revision and
. restatement of the general and permanent laws of the
. United States.
. Because many of the general and permanent laws that are
. required to be incorporated into the United States Code
. are inconsistent, redundant, and obsolete, the Office of
. the Law Revision Counsel of the House of Representatives
. has been engaged in a continuing comprehensive project
. authorized by law to revise and codify, for enactment
. into positive law, each title of the Code. When this
. project is completed, all the titles of the Code will be
. legal evidence of the general and permanent laws and
. recourse to the numerous volumes of the United States
. Statutes at Large for this purpose will no longer be
. Positive law codification bills prepared by the Office
. do not change the meaning or legal effect of a statute
. being revised and restated. Rather, the purpose is to
. remove ambiguities, contradictions, and other
. imperfections from the law.
. Current Positive Law Codification Projects of the
. Title 46, "Shipping" (H.R. 1442)
. Title 51, "National and Commercial Space Programs"
. (H.R. 3039)
. Technical Corrections to the U.S. Code (H.R. 866)
Interesting ... Title 47, Chapter 5, Subchapter I, Section 223 was last recodified on 01/19/04, along with everything else in Title 47.
(This is apparent, because that is the date from the U.S. Code, for all chapters of Title 47 ... )
Here is chapter 5, containing section 223 ...
You know, Title 47 is getting kind of messy. Maybe it's time to Codify !!!
I wonder if the resolution of those "ambiguous" or "inconsistent" sections could cause an "unintentional" (whoops!) intrusion on the "free speech" that Americans will be less frequently exercising?
______ Why Is Internet Anonymity Important, Anyway ? ____________
First off, do you always identify yourself completely?
Do you use initials?
Do you include the middle initial?
Or, just your last name?
Do you use your entire name, as recorded on your birth certificate?
Is your name common?
Did you include your address, just to make sure it's not ambiguous?
Is it your current address, or your birth address, and date of birth?
You really ought to incude your Social Security number to be completely free from prosecution. That would guarantee that you won't be prosecuted for accidentally annoying some ONE person out of the thousands reading your "free speech". And him calling his step-son with the U.S. Attorney's Office.
Maybe you shouldn't hit that topic so hard, maybe you should back off.
Hell, you have better things to do than waste time expressing yourself on that public affairs topic anyway.
Mr. President, how about spreading some of that freedom around, here in the good ole U.S.A. ? What do you say ?
Perhaps it will be noted at some later time, that we gave up civilization because of the barbarism of others.
We relinquished our grip on our principles ... because we were a civilized people, defending our homeland, defending freedom abroad, we gave up our freedom here.
Defending women against violence which is eternally present and impossible to legislate away, we did violence to our precious Constitution, which so many died to create and preserve, and up to this moment was eternally unique.
THIS was why we gave up our principles and shredded our Constitution ... to catch a handful of perps, maybe in the glare of lights on camera on the show "COPS". So, it was their fault. Right?
Perhaps the ends do not justify the means, and then ends and means should be justified separately.
Except in the Constitution and the precious few other things in life, where the ends and the means are the same wonderful thing.
For myself, I post anonymously on ARBN and other Buddhist newsgroups and gratefully receive the scornful comments of people whose only brave posting attacks are directed against the Soka Gakkai (International), and I mean those NSTies on ARBN.
The SGI is, for these guys, nothing more than a punching bag that never, ever will strike back at persons (in spite of your misinformation to the contrary, Craig Bratcher). Very few will stick up for the SGI.
Now, I on the other hand, take on all of Zen, Tantric, Reiki, Theravada, the martial arts, Islamic terror organizations, mob-connected porn queens, business-connected-large-group-awareness-training-seminar-therapy slanderers of the Buddha's teachings and intent ... and many more to come, I'm JUST getting started.
Salman Rushdie's enemies are a subset of mine, and he's on the run for the rest of his life. But as a past media darling, he has more people willing to help out than those who post anonymously, like myself.
If you are a single solitary voice, trying to speak out against the one great evil (whatever you think that might be), the choices of survivable venue are getting slim to none.
When we first started this internet enterprise things were rosy. Then, just after the Mosaic era, when the AOLosers first pumped up the numbers of gullible users ... people said, "don't give away your identity on the internet". "Be anonymous.", those law-breaking annoyers said.
There are baaaaaaaaad people out there who will hack you, and hurt you, and destroy your life.
Yes, there are those people, with Arlen Specter and Mike O'Neill leading the pack.
But, it doesn't have to be.
______ UPDATE: Progression Of Moves By the States _______________
From the New York Times on April 17, 2006, "A Sinister Web Entraps Victims of Cyberstalkers", By Tom Zeller Jr.
. State legislatures took notice around 1999 and began
. passing laws that make cyberstalking a crime. Three
. months ago, President Bush signed federal anti-
. cyberstalking legislation.
. About 45 states now have laws similar to California's.
. And the new federal law — tucked into the Violence
. Against Women and Department of Justice Reauthorization
. Act — updated telephone harassment law to include
. computer communications.
. Some advocates of civil liberty have complained about
. what they see as overly broad language of the federal
. update, which prohibits not only anonymous
. communications intended to threaten, abuse and harass,
. but also those intended to "annoy" — a term that might
. characterize a wide range of anonymous Internet banter
. that falls far short of cyberstalking.
. Others, though, have argued that such banter would be
. protected by the First Amendment, and only cyberstalkers
. have anything to fear.
And how exactly would that work? When the Law states one thing and the Constitution states another, a prosecutor will refer to the Law.
These Laws that inherently require unconstitutional prosecutions need to be struck down. Neither the State Houses, nor the Congress have the right to enact legislation that contradicts the Constitution of the United States. That right is not accorded to elected officials, and they MUST NOT ABUSE THE CONSTITUTION.
INSTEAD OF SPREADING A WIDE NET THAT GATHERS IN MOSTLY THE INNOCENT ALONG WITH A FEW GUILTY PERSONS (MINING FOR LOW-GRADE ORE), SHOULD WE NOT BE PURSUING THE GUILTY SPECIFICALLY AND LEAVING THE INNOCENT ALONE, INSTEADING OF REQUIRING SELECTIVE PROSECUTION TO MAINTAIN THE CONSTITUTIONALITY OF OUR STATE AND US CODE?
Nichiren Daishonin writes (Encouragement to a Sick Person, WND p. 78):
. "During the Former and Middle Days of the Law, the
. five impurities began to appear, and in the Latter
. Day, they are rampant. They give rise to the great
. waves of a gale, which not only beat against the
. shore, but strike each other. The impurity of
. thought has been such that, as the Former and
. Middle Days of the Law gradually passed, people
. transmitted insignificant erroneous teachings
. while destroying the unfathomable correct
. teaching. It therefore appears that more people
. have fallen into the evil paths because of errors
. with respect to Buddhism than because of secular
Because Bodhidharma discarded the Buddha's highest teaching (the Lotus Sutra), and due to his lazy nature turned to shortcuts to enlightenment, he came to the distorted view that life is acausal and empty, that the true entity is the void.
This erroneous view really comes from a misunderstanding of the Sutra of Immeasurable Meanings, where the True Entity is described by negation (the only way it can be): "... neither square, nor round, neither short, nor long, ..."
The description of the True Entity is logically voidal, but the True Entity itself is not. Bodhidharma was simply confused, due to the slander of negligence (laziness), and false confidence. The truth of life is that at the heart of the True Entity is the compassion of a bodhisattva for others.
Non-substantiality does not mean empty. Life has value. Humans are respectworthy. There is a purpose to everything. And every cause has an effect, so we are responsible for our thoughts, words and deeds. Zen is acausal. Zen is the greatest poison, which compares to the even greater medicine of the Lotus Sutra.
Suffice it to say: the purpose of Zen in the world is to corrupt and undermine everything that is not based upon the truth and the true teaching. All religions, disciplines, institutions and organizations which are undermined by Zen will eventually fall after glaring revelation of their worst defects, sooner rather than later.
If there is some good in your family, locality, society and culture, or country that you would like to retain, then cease the Zen, and begin to apply the medicine of the Lotus Sutra to heal the Zen wound in your life.
"Zen is the work of devilish minds." - Nichiren
. a prescription for the poisoned ones:
. The only antidote for the toxic effects of Zen in your life ...
. be that from Zen meditation, or the variant forms: physical
. Zen in the martial arts, Qigong, Acupuncture, Falun Gong,
. Copenhagen Convention of Quantum Mechanics, EST,
. Landmark Education, Nazism, Bushido, the Jesuits,
. Al Qaeda, or merely from having the distorted view that life
. is acausal, and that the true entity of all phenomena
. is the void ...
. with the effects of the loss of loved ones, detachment,
. isolation or various forms of emptiness in your life ...
. is the Lotus Sutra: chant Nam-Myoho-Renge-Kyo
. at least 3 times, twice a day, for the rest of your life,
. in at least a whisper ...
. and if you can, chant abundantly in a resonant voice !!!
. The full 28 Chapters of the Lotus Sutra,
. Nichiren Daishonin's Gosho volumes I and II,
. the Record of the Orally Transmitted Teachings
. (Gosho Zenshu, including the Ongi Kuden) and the
. SGI Dictionary of Buddhism are located at:
. To find an SGI Community Center:
LS Chap. 16 .....
All harbor thoughts of yearning
and in their minds thirst to gaze at me.
When living beings have become truly faithful,
honest and upright, gentle in intent,
single-mindedly desiring to see the Buddha
not hesitating even if it costs them their lives,
then I and the assembly of monks
appear together on Holy Eagle Peak.
At that time I tell the living beings
that I am always here, never entering extinction,
but that because of the power of an expedient means
at times I appear to be extinct, at other times not,
and that if there are living beings in other lands
who are reverent and sincere in their wish to believe,
then among them too
I will preach the unsurpassed Law.