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 I know the year has barely begun, but already much is happening and I thought an update would be in order owing to the immediacy of what is happening. I will keep this one short and sweet and send a more comprehensive update towards the end of the month, as planned. 

 Last Thursday, President Bush signed into law a prohibition on posting annoying Web messages or sending annoying e-mail messages without disclosing your true identity. And naturally, as the owner, editor and publisher of -- and having fought this issue all the way to the United States Supreme Court -- I am potentially impacted by the new law. 

 Declan McCullagh of C|Net broke the story on Monday, January 9, 2006 in which he quoted me based on a discussion we had engaged in on Friday after the law was signed. 

Clinton Fein, a San Francisco resident who runs the site, says a feature permitting visitors to send obnoxious and profane postcards through e-mail could be imperiled. 

 "Who decides what's annoying? That's the ultimate question," Fein said. He added: "If you send an annoying message via the United States Post Office, do you have to reveal your identity?" 

 Fein once sued to overturn part of the Communications Decency Act that outlawed transmitting indecent material "with intent to annoy." But the courts ruled the law applied only to obscene material, so didn't have to worry. 

 "I'm certainly not going to close the site down," Fein said on Friday. "I would fight it on First Amendment grounds."
 Declan's article, ironically not only annoyed, but infuriated many, fast becoming the most talked about article on C|Net. Within hours the story had not only proliferated on blogs everywhere, but had been translated and published on sites in Germany, France, The Netherlands, United Kingdom, Italy and who knows where else. 

 And although the bill was authored by Republican senator Arlen Specter and signed by President Bush, McCullagh's article was construed by many to be a partisan bitch slap that over-dramatized the scope and intent of the law. First Amendment experts and laypeople weighed in fast and furiously on message boards and bogs. If there was one certainty at all, it was that the new law, as amended, was unequivocally unclear. 

 On the same day, I published an editorial expanding on my interpretation of the new legislation insofar as I felt it related to, which in turn was widely disseminated. 

 On Wednesday, January 11, 2006, C|Net Published Declan McCullagh's addendum to his original article clarifying and expanding on many of the issues raised by his first article as well as referencing the interpretation I had published on In response to many of the questions I was fielding, and after conferring with a number of attorneys and First Amendment experts, I too published an additional editorial that expanded on what I had said so far. 

 Since this is only unfolding as we speak, I thought this update might be interesting to some of you, especially if anyone wants to weigh in. Hundreds of thousands of people have visited over the last couple of days, although spikes like this are not uncommon after news stories relating to break. 

 Although Declan quoted me accurately as saying I would fight this on First Amendment grounds before being forced to close down the site, I have not decided whether or not I would fight it preemptively as I did in ApolloMedia v. Reno, since so much is still unclear, not to mention the time, cost, commitment, risk and other factors involved. And based on my current understanding of the law, as you will see in my two editorials, prosecution is probably unlikely although certainly not impossible. 

 I will bring you up to speed in my next update. In the meanwhile, this represents an interesting start to 2006.

Divisive Devices, 2006 (Detail)
Photo: Clinton Fein 

	• Editorials
 - With Intent to Annoy
 - With Intent to Annoy II

	• 	External References
 - Perspective: Create an e-annoyance, go to jail

 - FAQ: The new 'annoy' law explained 

 - US criminalises cyber-harassment 

 - Here We Go Again: Law Attempts To Limit Anonymous Online Speech 

 - Bush firma: galera per i troll 

 - Bei anonymer Online-Beleidigung drohen in den USA... 

 - Zabranjeno anonimno... 

 - Skittkasting ulovlig pa nett i USA 

	• 	Previous Email
 - 'Tis the Treason Editorials

With Intent to Annoy

Supremes, 1998
Clinton Fein

 Although this new law is not clear, it appears similar to how the Communications Decency Act broadened 223 beyond telephones to communications transmitted by computer, restricting a medium that is significantly less intrusive than the telephone. A ringing telephone intrudes into private space and carries the ability to harass or annoy even if no content is communicated, especially when the calls are repeated or come in the middle of the night. But computer communications are silent and, importantly, they are read only if the recipient chooses to read them. 

It appears, with Sec. 113, that one is guilty of a crime if one were simply to "utilize" a telecommunications device "with intent to annoy" a person. Regardless of the content, or even in its absence. A conduct rather than a content crime. Perhaps waving a Blackberry in someone's face. Or annoying someone by using their cell phone as a vibrator. 

>>With Intent to Annoy: Full Editorial

With Intent to Annoy Part II

Janet Reno, 2000
Clinton Fein

 If the language as amended above is to be taken on its face, the first problem is with the word utilizes, since it doesn't clarify whether utilizing it has to be for its intended telecommunication purpose. 

 Loudly setting off the alarm of my cell phone every two minutes whilst attending a ballet doesn't change the fact that the device CAN BE USED to originate communications that are transmitted, in whole or in part, by the Internet. Or that I have not revealed my identity. Or that I have not annoyed many people. Similarly, if I was to hold up my cell phone, displaying an aborted fetus as the background image, and point it at doctors entering or leaving an abortion clinic, without revealing my identity, would that constitute utilizing a prohibited device and thus a felony? 

>>With Intent to Annoy II: Full Editorial

External Resources

Perspective: Create an e-annoyance, go to jail
By Declan McCullagh 
 Published: January 9, 2006

Declan McCullagh

 It's no joke. Last Thursday, President Bush signed into law a prohibition on posting annoying Web messages or sending annoying e-mail messages without disclosing your true identity.

 In other words, it's OK to flame someone on a mailing list or in a blog as long as you do it under your real name. Thank Congress for small favors, I guess. 

 This ridiculous prohibition, which would likely imperil much of Usenet, is buried in the so-called Violence Against Women and Department of Justice Reauthorization Act. Criminal penalties include stiff fines and two years in prison. 

>>Perspective: Create an e-annoyance, go to jail
FAQ: The new 'annoy' law explained
By Declan McCullagh
 Staff Writer, CNET
 Published: January 11, 2006

Q: What does the word "annoy" mean, anyway?
 Vagueness is one of the law's problems. The Merriam-Webster dictionary offers two definitions of annoy. One is merely to "disturb or irritate," and the other is "to harass." 

Q: Is this going to be challenged in court?
 Maybe. Clinton Fein, who runs, has said he might. Fein has challenged a related law in the past. 

 But lawsuits are expensive, and there's no guarantee of success.

>>Read more
US criminalises cyber-harassment
By Iain Thomson
 Published: January 10, 2006

 Clinton Fein, a South African activist who runs, was scathing about the new law. 

 "It appears that one is guilty of a crime if one were simply to 'utilise' a telecoms device 'with intent to annoy' a person regardless of the content or even in its absence," he said. "A conduct rather than a content crime; perhaps waving a BlackBerry in someone's face."

>>Read more
Here We Go Again: Law Attempts To Limit Anonymous Online Speech 
By Kurt Opsahl 
 Electronic Frontier Foundation
 Published: January 10, 2006

 However, when that statute, as modified by the CDA, was challenged in ApolloMEDIA Corp. v. Reno, 19 F. Supp. 2d 1081. (ND Cal. 1998) (aff'd 526 US 1061 (1999)), the court interpreted the challenged section (subsection (a)(1)(A)(ii)) to apply only to obscene speech, not to "indecent" communications made "with an intent to annoy" (as written in the statute). (More on case from

The provision here (subsection (a)(1)(C)) is different - it speaks neither of indecent nor obscene speech, and was thus not directly affected by ApolloMEDIA. Nevertheless, a court considering this provision may also be guided to find a reading of the revised law that will comport with the First Amendment.

>>Read more

Bush firma: galera per i troll
 Punto Informatico
 Published: January 11, 2006

 Senza contare, poi, che in rete ci sono servizi, come, che sono addirittura pensati proprio per spedire messaggi di disturbo, servizi che nascono anche grazie alla sostanziale innocuità di questo genere di comunicazioni. Il suo creatore, Clinton Fein, ha dichiarato a di non avere alcuna intenzione di chiudere il proprio sito con la nuova legge ed anzi intende "combattere a partire dal Primo emendamento" alla Costituzione americana, quello che come noto difende la libertà di espressione.

>>Read more

Bei anonymer Online-Beleidigung drohen in den USA kunftig Haftstrafen
 Heise Online
 Published: January 10, 2006

 Unter der neuen Definition konnten sich kunftig beispielsweise auch Politiker belastigt oder gestort fuhlen, die anonym in Internet-Foren kritisiert werden. Clinton Fein, Betreiber der Website, erwartet unterdessen Arger von Personen, denen sein schwarzer Humor nicht passt.

>>Read more

Zabranjeno anonimno dosa?ivanje internetom
 Published: January 10, 2006

 Navedeni web korisnicima omoguaeava anonimno slanje iritantnih i duhovitih poruka e-po'te, a njegov vlasnik Clinton Fein izjavio je da ne misli ugasiti svoju stranicu; koja na duhovit naein koristi svaku priliku da kritizira aktualne amerieke vlasti; te da aee se, bude li to potrebno, u svojoj obrani pozvati na prvi amandman.

>>Read more

Skittkasting ulovlig pa nett i USA 
 VG Nett
 Published: January 10, 2006

 Amerikanske Clinton Fein, eieren av nettstedet hvor besøkende blant annet kan sende spydige og plagsomme postkort til andre, vil ifølge ikke rette seg etter den nye loven.

>>Read more

Previous Email

'Tis the Treason 

Untitled, War Against War Series, 2003 (Detail)
 Photo: Clinton Fein)

 A year end round up to spread some "Holiday Cheer." Although the religious right in America would have you believe that there's a war on Christmas, you need just walk into a store -- any store -- and you'll be blasted with annoying Christmas songs. (My worst this year was someone singing Jingle Bell Rock at double the speed, which made it doubly annoying!) So if the right is in need of a reason to knicker-knot, there's enough gender-bending-stereotype-ending on the cultural landscape to make a Pope blush, a cowgirl cringe and a homophobe hysterical. 

 Aside from an out-of-control Administration that is spying on Americans (as well as everyone else) in violation of the Constitution, things are going swimmingly swell. The "elections" in Iraq went as smoothly as if it were taking place in Zimbabwe, and America has a new "Plan for Victory," which is simply that. A meaningless plan that will make the empty promise of "Mission Accomplished," look as realistically based as the "last throes" of the insurgency, as Dick Cheney put it. (Maybe he meant last throws of their grenades before moving on to bigger, more powerful weapons.) Terrorism is alive and well and breeding in Iraq. Er...Plan for there not just a Plan B?

>>The details... 

 This is a monthly online newsletter by Clinton Fein. You receive it because we're friends, family, know one another, or you have requested to be on this list in order to keep up with what I am up to.  If for any reason, you don't want to receive this, please just hit your reply button  and enter the word "Unsubscribe" in the subject line, and your name will automatically  be removed from the list. 

Clinton Fein
 555 Florida Street, Suite 407
 San Francisco, CA 94110

 Email: clinton xq com

 I try and send out updates about once a month, but am not alway able to be so fastidious. I will respond to all and any emails I get from anyone, so please respond when you can. 

Feedback is not just welcome, it's encouraged.
For updates and info, contact scott at planttrees dot org.