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The strange real world

Legislating can be difficult, but Idaho Representative Stephen Hartgen, R-Twin Falls, who in a former life as a newspaper publisher once managed a large web site operation, ought to have been able to see this one coming from a couple of mile off.

The basic concept behind House Bill 82 seems clear enough: “Current Idaho Code 18­6710 prohibits the use of the telephone to harass or annoy another person. RS 18369C1 would extend this prohibition to harassment via emails, text messaging, internet posts or personal blogs. Communications would be covered by the current penalties of a misdemeanor in the first offense and as a felony in the second or subsequent offense. RS 18369C1 provides examples of internet sites to be covered, and definoriginates in or is received in the state of Idaho”.

If telephony and the Internet were the same thing, that might work. But the members of the House Judiciary Committee, where you might not ordinarily expect lots of high-tech expertise, spotted the flaws pretty quickly. From reporter Betsy Russell’s blog:

Rep. Bill Killen, an attorney, asked Hartgen if the bill would cover his accessing a blog from Indiana that proved to contain material he found offensive. Hartgen said, “I think that would be a matter for the prosecutor to decide.” Rep. Raul Labrador, also an attorney, then said, “If it depends, I’m voting no. … If it depends, I have a real problem with this statute.” Hartgen said, “I think it would depend on what the prosecutor’s interpretation is. … That doesn’t really change, whether it’s Internet or telephone.” Responded Labrador, “But there is a huge difference, because the telephone message is directed at me,” while the blog is just posted in cyberspace.

Rep. Phil Hart, R-Athol, posed a hypothetical about a 17-year-old girl and a 19-year-old boy who have consensual sex, take explicit photos, then break up, and then one sends the other the photos. “In this committee we deal with the real world, and the real world can be strange,” Hart said. “Where’s the line between a crime and consensual behavior?” Hart also asked how many people would end up in Idaho’s prison system if Hartgen’s bill became law. Rep. Lynn Luker, R-Boise, an attorney, asked Hartgen for a definition of profane language.

Is the use of the Internet “to annoy, terrify, threaten, intimidate, harass or offend” a real problem? Yes. It is. But this kind of problem grows out of a new kind of technology, new uses and approaches. And legal responses to it will probably have to grow similarly, out of new ideas and approaches.

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