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Digital Devices Raise New Free Speech Questions

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Digital Devices Raise New Free Speech Questions

Digital Life

Digital Devices Raise New Free Speech Questions

Digital Devices Raise New Free Speech Questions

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Gene Policinski, executive director, First Amendment Center
Eva Galperin, activist, Electronic Frontier Foundation
Ira Winkler, president, Internet Security Advisors Group

The Bay Area Rapid Transit system has come under fire for temporarily disabling cell phone service to thwart a potential protest. But does the government ever have the right to restrict the flow of digital information in the interest of public safety?

REBECCA ROBERTS, host: This is TALK OF THE NATION. I'm Rebecca Roberts in Washington. Neal Conan is away. Police at BART, the Bay Area Rapid Transit, temporarily interrupted Wi-Fi and cell phone service at select stations last week in order to thwart a potential protest. The protestors were in opposition to the death of Charles Blair Hill, who was shot by BART police in July.

The transit agency says the decision to block the wireless signals was, quote, one of many tactics to ensure the safety of everyone on the platform. Free speech activists say the move violated First Amendment rights, but others say that in this case, the right to public safety trumps the right to freedom of speech.

So where do you draw the line? The question has come up in Egypt, where ousted President Hosni Mubarak ordered the shutdown of cell phone service, and in the U.K., where British Prime Minister David Cameron has openly considered censoring social media.

When does the government have the right to interfere with Internet or cell phone service? Our number is 800-989-8255. Our email address is talk@npr.org. You can also join the conversation at our website. Go to npr.org, and click on TALK OF THE NATION.

Later in the program, we begin our Freshman Reads series with the book "The Other Wes Moore," but first, freedom of speech in the digital age. We start with Gene Policinski. He's the senior vice president and executive director of the First Amendment Center. He joins us today from a studio in Nashville, Tennessee. Gene Policinski, welcome to the program.

GENE POLICINSKI: Thank you very much.

ROBERTS: Obviously this technology just didn't exist when the First Amendment was written. How do we sort this out in a modern age?

POLICINSKI: Well, I think we first start by saying we're not going to throw out 220 years' worth of thinking about the way we communicate with each other, the way we express ourselves, the way we petition government for change, the way we assemble.

So while the technology is a new wrinkle, I think we can look to a lot of settled law and principles that we hold dear to really guide us through this. But it is important, because BART is the first time this has occurred in this fashion in the United States, and in a way, this debate is going to help us structure how the law moves on from here.

ROBERTS: Well, the ACLU had planned to file a suit against BART after the incident. Now those plans have changed somewhat. What are the legal grounds for a suit here?

POLICINSKI: Well, I think you'd want to look at a couple of things. First of all, is this prior restraint? 1931 Supreme Court case said you can't step in and stop a speaker, in that case it was somebody publishing material, you can't stop them from advance. You might be able to take action like libel or slander afterwards if you've spoken or written something, but you can't stop them.

So was this an issue of prior restraint? Was this the least possible experience? One of the provisions that lets government step in to limit speech for time, place and manner kinds of things, you know, something you might say at noon on the public square as opposed to 3 AM under a bedroom window, is whether - is there a least possible kind of government reaction or restriction.

Is there an overriding government interest, which BART is saying public safety? And then there's the issue really of whether a BART platform, a train platform, is a public forum or not.

So you've got a lot of First Amendment issues being raised here. It's a very complicated thing from what seems to be at first a very simple issue.

ROBERTS: And add in the fact that the communication was not simply, you know, any communication. It was plans to organize something that could have been ultimately disruptive. In fact, this protest, there had been an earlier version in July that was pretty disruptive. Does that change the...

POLICINSKI: It was, yeah. I beg your pardon. I think - I actually talked to a BART commissioner this morning. He gave me a call. You could tell the anguish, I think, from this gentleman, who really said that his interests are in transparency and openness, but he's kept coming back to the fact that, you know, what if someone had been pushed in front of a train or onto the third rail?

So, you know, in the sort of commonsense, everyday way, we can understand their concerns. The question here was, was shutting off cell phone service and Wi-Fi service the appropriate way? Could they have simply closed stations or limited the number of people?

Ironically, by closing off the communication that everybody had, they might have a slightly better constitutional argument because they didn't just target the protestors' messages somehow. But again, I still have problems with this idea of anticipating disruption as opposed to reacting to it.

ROBERTS: Now obviously the specifics of this case are going to continue to come out. The legal arguments are - continue to be made. But as you look forward, as someone who's a First Amendment scholar, where do you see this going?

POLICINSKI: Well, I think we have to recognize first of all that we now gather - we use our rights of free speech, free press, assembly and petition and perhaps even religion in a new way. We gather in this sort of cyber-community that we didn't have even five or 10 years ago.

It is no question now that communities exist online, and the right of association, which hasn't been mentioned much in this debate, which I think is actually very, very important here, we now associate in a virtual world in a way that didn't occur just a few years ago.

So I'm - I think we want to look very carefully at any restrictions on those virtual communities that might differ from the way we handled things when we got together in a meeting hall or in a protest or on a sidewalk.

ROBERTS: Gene Policinski is the senior vice president and executive director of the First Amendment Center. Thank you so much for joining us today.

POLICINSKI: Certainly.

ROBERTS: And moving on from the specific legal issues of the BART case to talk more broadly about where or whether there is a situation when wireless communication or the Internet could be cut off by a government entity, we are going to broaden this conversation, including you, our callers. The number is 800-989-8255. And the email is talk@npr.org.

And joining me here in the studio is Ira Winkler. He's the president of the Internet Security Advisors Group. He's also the author of the book "Spies Among Us." Welcome to the program, Ira Winkler.

IRA WINKLER: Thank you.

ROBERTS: And from member station KQED in San Francisco, we have Eva Galperin. She's an activist with the Electronic Frontier Foundation, and in a recent piece on the website, she wrote: Cutting off cell phone service in response to a planned protest is a shameful attack on free speech. Eva Galperin, welcome to the program to you.

Ira Winkler, let me start with you. Do you think that BART's decision was a violation of free speech?

WINKLER: Personally not. I - for one thing, I don't think BART itself has a responsibility to facilitate free speech, but that's neither here nor there in my opinion. Fundamentally, you are putting a lot of people in a protest, and you really don't know what's going on.

Just like you saw in the situation in London that got way out of hand, you're putting people where trains are going through, you're putting people in situations where they could be trampled depending on what's going on, and I don't want to say luckily in London it occurred in large, open spaces, as opposed to, for example, in the Underground, but you have no way of controlling what people start telling each other.

And I'm not saying that's good or bad. At this point, all BART did essentially was stop access to cell phone service. And a lot of people would say they have a right to cell phone service. There is no constitutional right to cell phone service. And likewise, there's - you know, I mean, going back to Oliver Wendell Holmes, you basically can't yell fire in a crowded theater, likewise does BART have a responsibility to facilitate a protest against it?

In my opinion - I like to look at things in real-world equivalence, and for example, if somebody wanted to protest - like a lot of supermarkets get protested or go on strike for whatever reason. The supermarkets don't have a responsibility to feed the protestors. The protest organizers can't go in and say gee, my protestors out here are getting thirsty, can you give us some water and beer because beer will get more people in.

Likewise, BART doesn't have a responsibility to provide cell phone service. Their responsibility is to provide a safe mode of transportation for people to get from one point to another. They're not there to provide a platform. They're not there to provide anything except safe transportation.

And if things would have went bad, everybody would have started blaming BART for gee, how could you not foresee a potential thing going bad? And likewise, they could protest anywhere. They don't have a right to protest anywhere. They don't have a right for freedom of speech anywhere. You have to pay to get in. You have - you can be kicked out of these places.

ROBERTS: Let me give Eva Galperin a chance to respond here. Was there a free speech priority here that trumps some of the issues that Ira Winkler is bringing out?

EVA GALPERIN: Well, Ira brought up a very interesting point, which is, you know, what if somebody had gotten hurt during one of these protests. And I would simply ask: If someone had gotten hurt during one of these protests, do you think that the people demanding that something would be done would suggest that BART should have turned off cell phone service? Was this the appropriate action?

Was this going to ensure people's safety? Furthermore, I would point out that cell phone service was originally brought into the BART stations, on the platforms and in the trains, shortly after 9/11, when it became clear to people how useful it was to public safety to have widespread, ubiquitous use of cell phones for people so that in an emergency, they could contact the authorities, they could contact the police, they could contact their loved ones and their families.

And the use of cell phones in BART stations makes people safer rather than detracting from the safety of riders.

ROBERTS: Which is why it exists in the first place, but that doesn't necessarily mean that was the case in this specific instance. I mean, as it happened, no one really showed up at this particular protest, but there was one on July 11th where protestors prevented trains from leaving. One person actually climbed on top of a train, according to local reports.

If shutting off cell phone service wasn't the way to prevent something like that, what do you think was?

GALPERIN: Well, that's exactly what I was just asking Ira.

WINKLER: Well, specifically, you can't go ahead and, you know, essentially respond to a negative, which is what you're asking. Specifically, when we're talking about cell phone service and things like that, yes. In September 11th, when you don't have potential forms of protest and everything like that, yes it's a good move to go ahead and give people access.

And frankly, it's a convenience because I don't like a state of fear where we only have things because if everything goes wrong, it would be convenient. You know, again, BART is providing a convenience for the average commuter, and yes, at the same time, it does have residual effects to make things theoretically more secure if something really goes wrong, which is a very rare case.

On the other hand, when you have the exact opposite occurring, where you know that cell phones, for example, are potentially going to be used to create the - I'll call it mini-anarchy that you're talking about, where people - where trains are stopping to go through, where people are climbing on top of trains and everything like that, where you actually had a demonstrated case of inconvenience to the people they're supposed to serve, you say which am I going to take away, the actual service I'm to provide, or let me try to at least impede the process of people going ahead and organizing because there's nothing that - they could have theoretically just walked on and done whatever they did without having to organize.

If they would have planned ahead, but instead of planning ahead, they want a flash mob, that's a difference. Let them do what they theoretically did, which was organize a march later and go down Embarcadero and do whatever they did, and BART responded appropriately by shutting off one station after another, inevitably causing inconvenience. But BART didn't have a responsibility to provide the platform for disrupting their own service.

ROBERTS: We need to take a break. We will have more with Eva Galperin and Ira Winkler after this. In the meantime, tell us: When does the government have the right to interfere with Internet or cell phone service? Our number is 800-989-8255. We'll take your calls in a minute. I'm Rebecca Roberts. This is TALK OF THE NATION from NPR News.

(SOUNDBITE OF MUSIC)

ROBERTS: This is TALK OF THE NATION, from NPR News. I'm Rebecca Roberts, in Washington. When BART officials chose to cut cell phone service at several stations to interfere with a planned protest, they stepped into some tricky legal territory.

BART spokesman Linton Johnson defended the agency's action, quoting the Supreme Court decision in Brandenburg versus Ohio that allows for the impediment of free speech under rare circumstances where lawless action is imminent.

But the ACLU has submitted a public letter to BART, arguing that the move was unconstitutional, that the planned protest did not meet the court's criteria. The Federal Communications Commission is investigating the matter.

When does the government have the right to interfere with Internet or cell phone service? Give us a call. Our number is 800-989-8255. Our email address is talk@npr.org. And you can join the conversation at our website. Go to npr.org, and click on TALK OF THE NATION.

Ira Winkler, president of the Internet Security Advisors Group, and Eva Galperin, activist at the Electronic Frontier Foundation, are our guests. And let's take some calls. This is Karl(ph) in Malvern, Arkansas. Karl, welcome to TALK OF THE NATION.

KARL: Yeah, hello. Good afternoon. Interesting topic. I think I would have to agree with Ira on this. To my knowledge, no one on the platform was told that they could not speak. The only thing they were not allowed to do was Twitter, Facebook or cell phone. And so speech was not affected here. It was just the use of an electronic device. And I don't see that as a constitutional freedom.

ROBERTS: Karl, thanks for your call. Eva Galperin, does the medium of speech matter?

GALPERIN: Absolutely. I think that that's really quite unquestionable. Again, while BART is not under any obligation to provide cell phone service, either in trains or on platforms, they did make it available, and the fact that they took it away specifically to prevent a protest is highly disturbing.

WINKLER: Could I respond?

ROBERTS: Yeah, please.

WINKLER: I would say it's not that they took it away to prevent a protest. They took it away to prevent disruption of service. They don't necessarily care what the opinions were, and frankly, in many ways, I am somewhat supportive of what the protest was about. But the fact is that they were preventing people from - and it's not that they were even preventing free speech. They weren't preventing people from saying I disagree with BART. I don't like the shooting. I don't like this. They were trying to prevent them from organizing a more effective protest in a way that could, again, evolve into the anarchy that developed in the previous protest that they had.

GALPERIN: It's unclear to me how the ability to use cell phones, Facebook and Twitter would have inevitably caused the protest to devolve into anarchy.

WINKLER: Well, when you start, again, organizing people, when you start going ahead and telling people how to be more effective in their protest, when you start getting people worked up in a closed environment, you don't - again, it comes down to the fact that you don't have a - BART does not have a responsibility for helping the protest be more effective in any way, shape or form.

It's true that you don't know what's going to happen, but at the same time, it's clearly true that whatever they wanted to do as far as having the protest have less of an impact, appears to have worked.

ROBERTS: Eva, let me ask you this question: Is there - could you foresee a circumstance when it would be appropriate to cut off the wireless access? If, for instance, BART became aware of a specific violent threat or a bomb that was going to be set off. Is - can you see any circumstance where it's appropriate?

GALPERIN: I think that someone would have to convince me of the reason why specifically cutting off communications for ordinary people on the BART platform would make someone safer from a bomb. Provided they could do that, absolutely.

ROBERTS: Let's take a call from Chris in Modesto, California. Chris, welcome to TALK OF THE NATION.

CHRIS: Hi, thanks for having me. My issue is that I think that when the framers wrote the Constitution and put freedom of the press in as one, what they were doing there was trying to guarantee the best technology for communicating and dissemination of ideas that was available at the time.

And Ira's remark that, you know, there's no constitutional protection to guarantee cell phone service, of course not. But if they were alive today, framing the Constitution today, they would have been putting that as the First Amendment.

The issue is that you have to have an open form of communication by whatever technology is state-of-the-art at the time in order to have a thriving modern society that is democratic in nature.

WINKLER: Could I respond?

ROBERTS: Yeah, Ira.

WINKLER: Basically, the reason for freedom of press was specifically because the press was the oversight to government. You know, for lack of a better term, the press has been considered the fourth branch of government. Freedom of press pretty much is specifically stating that they do not want the government to stop oversight.

Also, however - and here's a key thing - they never said the government has to facilitate the press. They just said that the government will not impede the press. And again, this is a case where BART was facilitating a public service. And if you're going to use the - you know, why there's freedom of the press, that's one thing. If you're going to talk about freedom of speech, which might be what your intent was, again, there comes down to the constitu-- you know, what the initial thing was.

Do people have a right to talk? Yes, they have a right to talk. Do people have a right to express their opinion? Yes, they have a right to express their opinion. But at the same time, we've already known that people, when they want to have a protest, have to go ahead, get issued permits. They have to make sure that there's adequate security.

In this case, BART has no facility for doing anything like that. If they would have went ahead and said we want to have a protest. We'd like a, you know, permit, which San Francisco gives out on a regular basis, they would have been clearly covered. And yes, there would have been restrictions on how and where, but that's what a democratic government does.

Again, a democracy does not guarantee freedom of the press without any form of repercussions to everybody else. A democracy guarantees freedom of speech, freedom of press, along with guaranteeing the over - well, the good will of society. And in this case, freedom of speech, we're not talking about them stopping from airing their views. In this case, they saw what theoretically could have happened, and they wanted to stop them from more effective disruption. That was the intent.

ROBERTS: Let's take a call from Chester in Jackson, Michigan. Chester, welcome to TALK OF THE NATION.

CHESTER: Thank you. I heard - read on the Internet about this rapper in California. He had tweeted something, and it jammed up the phone lines, and now the city that he done it, where that was done, they thinking about prosecuting him. And I was wondering what your panel is thinking. Is there a difference between the two cases? And I'll take your comments off the air.

ROBERTS: Chester, thanks for your call. Eva Galperin, do you know what he's talking about?

GALPERIN: No, I'm afraid I don't.

WINKLER: I do.

ROBERTS: Oh, Ira does.

GALPERIN: It's unclear to me how tweeting something can jam up phone lines.

WINKLER: Yeah, here's what happened. The rapper in question - and I forgot his name. Basically, a tweet was sent out from his account saying, hey, if you want a music internship, call up this number. And the number was to the police department in the Los Angeles County area.

And so what happened was they tied up phone lines, and those were the same numbers that you would call to report emergencies, which there were at the point in time. And the question is, did the - the rapper now claims that he made - that his account was hacked.

However, the course of events was people went ahead, and they started getting these phone calls. The police tracked it down and told him they wanted him to delete it. He replied back something to the effect - and you can check the news sources on this - but gee, you can go ahead and track down a tweet, but you can't track down a criminal.

And then after that, they decided they wanted to prosecute him because there was apparently clear intent. It wasn't a mistype. There was no music internship. And that's what happened, and that's how the case came to fruition.

ROBERTS: We have an email from Lucien(ph), who says: Free speech is the right of one to express his or her opinions in a transparent and not-censored way, but the call for action and instigating is not falling under this category. Any government has the right to intervene 24/7 with communication channels, as long as it's done with the purpose of preserving the freedom and integrity of its society. Eva Galperin, how do you answer Lucien?

GALPERIN: Well, I think in the case of the quashed BART protest, there was no opportunity to make a call to action, because they simply did not get that far. No protest manifested itself precisely because it was not possible to communicate, and that is the very definition of a prior restraint on free speech.

ROBERTS: What about in general, the difference between speech and speech that instigates action?

GALPERIN: I think that Lucien appears to be trying to make a legal distinction, and I myself am not an attorney, and I cannot comment on legal matters.

ROBERTS: We have a couple of emails from folks in the Bay Area who have mixed reviews. Andy in Oakland says: I support BART in their decision. Mobile devices are radios, pure and simple. BART simply stopped providing service. They didn't scramble anyone's access. Nobody has a right to mobile service, just as nobody has a right to cable television.

Grace in San Francisco says: As a liberal arts student raised in the Bay Area, I fit the profile of an ardent defender of freedom of speech. However, although it's unfortunate that the actions of an emotionally charged mob led to the consequences for all, I believe that at a certain point some small personal sacrifices must be made in the interest of public safety - an expedient convenient public transportation.

Melissa, on the other hand, says the day the government starts paying my cell phone bill personally is the day they can interfere with it. It's like me buying my own groceries, and then the government coming to my house and picking out of my grocery - what out of my groceries what I could eat, but as long as I pay my bill, it should be up to me and the nearest cell tower whether I have service or not. Let's take a call from Rick in Elizabethtown, Kentucky. Rick, welcome to TALK OF THE NATION.

RICK: Hi. How are you?

ROBERTS: Good. How are you?

RICK: Good, good. Listen, I'm retired from the military. And this is just really pretty upsetting to me in that, first, we're in a day and age where had the service not been disrupted and a mob had materialized and people were injured or even worse, then we would have had a group of folks on the other side saying, well, why wasn't something done to stop it in the first place? It's the government's right to intervene each and every time it becomes necessary or it becomes obvious that the ramifications for no action is injury or even worse to the general population. I mean, that's what we are all about as a country, is defending ourselves and protecting the rights of those few that don't stand up and don't speak up for themselves.

GALPERIN: May I?

ROBERTS: Yes. Eva, go ahead. Rick, thanks for your call.

GALPERIN: All right. Thank you. Well, I think that there are a couple of points to be made here. The first is that BART had other tools with which to prevent imminent physical harm to riders. BART put police on the platforms in order to prevent people from doing anything dangerous. And it's possible that that would have been enough, that muzzling people's free speech at four stations all over downtown San Francisco may not have been necessary. And certainly I would argue that it was not necessary.

Furthermore, if somebody was acting in a way that was potentially dangerous in the middle of an anarchic situation on a BART platform, they certainly would have benefited from the presence of cell phone coverage, which would have allowed them to call emergency services. Or if the platform was completely anarchic, they could have called their loved ones or their work or their family to let them know that there was a disruption, that they were going to be late, to make sure that everything was being taken cared of. And none of that was possible because cell phone service had been turned off.

ROBERTS: That's Eva...

GALPERIN: Turning off cell phone service merely posed more of a danger to riders, especially if something had gotten out of hand.

ROBERTS: That's Eva Galperin of the Electronic Frontier Foundation. We're also joined by Ira Winkler, author of "Spies Among Us." You're listening to TALK OF THE NATION from NPR News.

WINKLER: Yeah. I want to respond to that because, frankly, I wholeheartedly disagree with that last statement, because in the first place a few police officers - and our subways in this post-9/11 age are flooded with police officers these days, whether you see them or not. The police officers at the previous protest did not stop the service disruption. It did not stop people from climbing on board. And things, as you see, have a tendency to get worse, not better. And by facilitating this and you're saying - I mean, frankly, saying that just because there's cell phone service and that they could call help?

When is the last time you saw something devolve into anarchy and all of a sudden everybody stopped and saying, gee, let me get an ambulance in here. That doesn't work in real life. It's a nice Pollyanna thought, but that's not how it works. Somebody will start...

GALPERIN: On the contrary, that's exactly what people did during the U.K. riots.

WINKLER: Well, no. The U.K. riots slowly devolved into a point where there were still people flooding - you had a - you pretty much have a counter-riot for help - for people getting back on the street. You still had people run down. You did have people calling for the police, but likewise, at the same time you can't expect - the police had to stop. Fire - and you're saying that the police were - that ambulances were called more effectively? That's flat-out wrong. There were...

GALPERIN: I think you're seriously mischaracterizing...

WINKLER: There were...

GALPERIN: ...what I just said, Ira.

WINKLER: There were fire trucks that were stopped because they could not guarantee the safety of fire trucks. And by the time in London they got to the place, the places were burnt down. So you can say that you can call for help quicker, and, yes, some people can. But you know, just - again, we're arguing about negatives here, which frankly is, well, gee, the protest didn't materialize, so we don't know if this happened. But if it did, maybe that could have helped, and that just isn't taking care of the underlying problem - is there a right to, like, unfettered cell phone access? Is there a right for free speech?

Because, frankly - and my point, it still comes down to if these people wanted to protest, let them do like any other group does, go get a permit to protest, organize all you want in advance, get everybody down there, not just try to jam the subways up in a method that's completely uncontrolled.

ROBERTS: I think we have time to squeeze in one more call here. This is Augie(ph) in Salt Lake City, Utah.

AUGIE: Hi. Yeah. I just cannot believe that you guys are bringing this up as a constitutional right. In my opinion, it's just like using your car. If you're operating your vehicle in an unsafe manner, a cop can pull you over to stop you from doing that. In this situation, people are going to use their cell phones in an unsafe manner, especially in light of what's going on in London right now. And all BART did was pull us over and stop us from doing that.

ROBERTS: Augie, thanks for your call. Eva Galperin?

GALPERIN: I don't think that that is a fair comparison. What BART did was it came to your house and locked you in, so that you could not get into your car in order to use it in what they think might eventually be an unsafe manner.

WINKLER: I would actually agree with Eva on this point to a certain extent because I don't necessarily say this is like the point of taking away somebody's license. I would, however, make a better analogy in this case that says we know somebody is a drunk driver. They don't have an unlimited right to drive. And in this case what we'll do is we'll put a breathalyzer on their starting device. Is that a perfect solution? No. But if they get in their car and they are intoxicated, we're not going to let the car start. And I would use that analogy a little bit better.

ROBERTS: That's Ira Winkler, president of the Internet Security Advisors Group and author of the book "Spies Among Us." He joined us here in Studio 3A. Thanks so much for being here.

WINKLER: Thank you.

ROBERTS: And Eva Galperin is with the Electronic Frontier Foundation. She joined us from member station KQED in San Francisco. Thank you for your time, Eva.

GALPERIN: Thank you.

ROBERTS: You can find links to Eva's pieces about the BART decision and Prime Minister David Cameron's reactions to the riots in the U.K. at our website. Go to npr.org and click on TALK OF THE NATION.

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