Tuesday, September 13, 2011

Free Airways = Free Speech?

The ethical question facing our new frontier as authorities with BART (Bay Area Rapid Transit) shut down cell phone service in its tunnels and trains when faced with that they perceived to be a credible threat of disruption of service via a protest. This is like a flaky crust, so many delicious layers.

The one place in the world where the authorities decide to deliberately muzzle protest is . . . oh, a few miles from Berkeley, which is served, of course, by BART. You may have heard in your history books, kids, of the Free Speech Movement?

If not in the heart, at least in the soul of Silicon Valley, the solution to protest is a high-tech shutdown of service. And gasp, there is no way to organize. Well, except for those hand-held little radios -- so steampunk to this digital generation.

The outrage on First Amendment grounds echoing all the way to the FCC. Oh, that's the same FCC that locks up huge portions of the spectrum for commercial gain. Is it freedom of speech free if you get to charge for the access?

On the public relations front, this has generated its own wave of pushback -- what about the law abiding customers? Yet it also raises the hackles of East Coast law enforcement who are very concerned about flash mob violence, particularly in Philadelphia. So when is a public utility in its right to take down the service?

As one might expect, it rippled through the chattering class. On The Media touched it three weeks in a row, and of course, Leo Laporte and This Week in Tech had an opinion.

An interesting reveal from OTM, speaking to a BART official Daniel Hartwick:

We never lead with suppression of social media, suppression of First Amendment rights, suppression in any manner.

It later brought the listener feedback, and the one in my head also, "oh, you don't LEAD with suppression" but it's part of the tools you can use.

The kicker was from NPR's Science Friday, as UCLA law professor Eugene Volokh bent himself into pretzels to prove the BART officials were completely within their rights because they are charged with keeping the transit service running. No protests could be allowed as they would disrupt that service. Wonder if he would have the same argument for rough treatment of protesters that sought to "disrupt" the Montgomery bus system?

I was left almost screaming at the iPod as Volokh continued that it protest on BART property was not OK unless it was in the pre-labeled "free speech area" (something I find eminently laughable). He seemed to imply it was not permissible to protest BART exactly where one should -- at a BART station -- since the original issue had to do with service. Along with invoking the need to "keep the trains running on time" -- seriously, did you really hear yourself -- Volokh implied that it was the government's property, and the government was within it's rights to use its own property -- the cell repeaters and towers -- as it saw fit on it's own property.

Perhaps the good professor could reconcile his position that it was the government's property with this phrase:

"We, the People, . . ."

See, last time I checked, I thought WE owned the government. How provincial of me.

Now on his own blog prior to Science Friday appearance, Volokh gave a reasoned defense of why BART was in the constitutional clear. Perhaps he was trying to be peckish on radio.

Why am I on this tangent? Because more than a few places in the athletic world face the kind of dilemmas like BART and the flash mobs. What if the athletic department decides to shut down cell service inside the stadium -- not implausible as most now have a distributed antenna mesh installed either at the request of the institution by a carrier or maintained by the institution and leased to carriers for profit.

Look, I've heard the conversations about how social media should be "shut down". How long until this becomes a debate in the game management meetings?

Let's hope cooler heads prevail.

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