[Infowarrior] - National security and free speech

[Richard Forno]

National security and free speech
By Harvey Silverglate
August 16, 2008

http://www.boston.com/bostonglobe/editorial_opinion/oped/articles/2008/08/16/national_security_and_free_speech/?s_campaign=8315

WHY DID the federal district court gag three MIT undergraduates who  
apparently discovered a flaw in the MBTA's electronic fare-collection  
system? The reason one judge imposed the unconstitutional gag order  
prohibiting the students from presenting their paper Aug. 10 at the  
DEFCON computer "hackers" conference, and another judge refused on  
Aug. 14 to vacate that order even after the conference ended, is the  
current excuse du jour for an epidemic of censorship: national security.

The students, as a project for their class in computer security,  
discussed how the CharlieCard could be decoded and used to obtain free  
T rides. When the MBTA learned that they were going to present their  
paper at DEFCON, it sought a temporary restraining order. Judge  
Douglas Woodlock, sitting as emergency "duty judge," granted the T's  
request and prohibited the presentation -- a clearly unconstitutional  
decision -- citing a violation of the federal Computer Fraud and Abuse  
Act. Even after a follow-up Aug. 14 hearing before Judge George  
O'Toole, the order stands.

The Computer Fraud and Abuse Act almost certainly does not apply to  
mere speech; rather, it covers someone who "knowingly causes the  
transmission of a program, information, code, or command to a computer  
or computer system." In other words, the statute outlaws hacking, not  
a scholarly (or even unscholarly) presentation. And even if the  
statute could be twisted to cover the DEFCON presentation, the First  
Amendment's free speech guarantee would render this use  
unconstitutional. Yet Woodlock issued a patently unconstitutional  
order. Why?

This bizarre court intervention is rooted, as are many other recent  
civil liberties violations, in the aftermath of the Sept. 11, 2001,  
terrorist attacks. The MBTA's court complaint highlights "the role of  
the MBTA in Homeland Security efforts" and claims that the hacking  
threat "affects a computer system used by a government entity for  
national security purposes." A supporting affidavit of MBTA personnel  
adds that "in 2007 the MBTA received $4 million from the Department of  
Homeland Security . . . for use in emergency communications  
initiatives." Thus the T, in reality just another local transit system  
struggling under crushing debt and long-term mismanagement,  
transmogrified a temporary threat to its fare collection system into  
something so urgent as to override the First Amendment.

The MBTA's motion for a gag order was heard by Woodlock. Four years  
ago, the judge penned an opinion when civil libertarians and political  
activists challenged Draconian security measures aimed at severely  
limiting demonstrations at the 2004 Democratic National Convention in  
Boston. While characterizing the chicken-coop-like "free speech zone"  
into which protesters were to be herded outside the Fleet Center as  
akin to "an internment camp," Woodlock said that it was "irretrievably  
sad" that post-Sept. 11 security threats made such tight restrictions  
on otherwise protected activity necessary. "One cannot conceive of  
other elements [that could be] put in place to create a space that's  
more of an affront to the idea of free expression than the designated  
demonstration zone," Woodlock moaned as he facilitated the affront.

The convention security issues were, admittedly real, even if the  
solution was unnecessarily harsh on free speech. But the possibility  
of real or merely feared -- but in any event temporary -- revenue  
losses for the T should not qualify as the kind of extraordinary and  
irreparable threat that can justify a restraining order. The Supreme  
Court has not had occasion -- yet -- to change that high legal  
barrier, but some lower federal courts have nonetheless since 9/11  
been setting a lower bar for the censors.

Ironically, this constitutional violation is for naught, since the  
order will not stop other bright minds from making the same discovery.  
Knowledge and its spread, for both constitutional and practical  
reasons, are not subject to court injunctions. The MBTA would have  
been better off hiring, rather than suing, the MIT trio to solve the  
electronic flaw. The students (and their professor) could doubtless do  
a better job of patching the security hole than the T's security  
officials, consultants, and vendors who designed the vulnerable  
system. But with the ghosts of 9/11 and "national security" hovering,  
the students and the First Amendment didn't stand a chance.

Harvey Silverglate is a criminal defense and civil liberties litigator  
and writer.