By Dan Kennedy • The press, politics, technology, culture and other passions

Sorry, Charlie — no free speech for you

Charles Evans Hughes forgot something when he wrote the U.S. Supreme Court’s landmark Near v. Minnesota decision in 1931.

The chief justice listed national security, obscenity and the imminent threat of violence as essentially the only three reasons that the courts could ever step in and order someone not to exercise his right to free speech. What he left out: information that could result in the MBTA’s losing some fare money. What a bonehead, eh?

Boston Globe reporter John Guilfoil (a former student of mine, by the way) wrote yesterday that U.S. District Judge Douglas Woodlock had granted the T’s request for an injunction preventing three MIT students from presenting their findings on security defects in the Charlie Card, the T’s electronic ticketing system. They had been scheduled to speak at the DEFCON 16 conference in Las Vegas.

For good measure, the T is suing MIT, too, for the grave offense of not teaching its students how to be good, Charlie Card-paying citizens.

In today’s Boston Herald, O’Ryan Johnson reports that one of the students is saying the trio offered to show MBTA officials their findings so they could fix their flawed system. Instead, the T decided to sue them.

For those of you with long memories, you may recall that Judge Woodlock is a piece of work. During the 2004 Democratic National Convention in Boston, Woodlock ruled that a cage set up by officials for the use of protesters was “an offense to the spirit of the First Amendment” — but then declined to do anything about it. He’s not big on newspaper boxes, either.

In 2005, Woodlock was the proud winner of a Boston Phoenix Muzzle Award for his outrages against free speech. It looks like he’s well on his way to a second statuette.

This story had gone nationwide — heck, worldwide — even before the Globe and the Herald got hold of it, as Universal Hub showed on Saturday. This will not end well for Woodlock. In the meantime, though, he’s created an unnecessary hassle for everyone concerned, and emboldened the T, which — wouldn’t you know — won a Muzzle in 2006.

Photo (cc) by David Bruce and republished here under a Creative Commons license. Some rights reserved.

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  1. Steve

    Gee, I’m glad you brought this up.If I just read the Globe article, I might have some sympathy for the T and Woodlock. That article makes no mention of Zack Anderson trying to tell the T what the security issues were prior to publication of the hack.If the Herald’s report about Anderson trying to contact the T is true, the lawsuit sounds like a typical bureaucratic reaction to a security problem – if no one finds out about it, there’s no problem. That way, they don’t have to do anything substantive to plug the flaw. Needless to say, if this is the case, I have no sympathy for the T.The folly of this attitude can be seen every day on the internet, where hacks are never kept secret for long. It’s simply amazing that the recent DNS hack revealed by Kaminsky, a threat to the entire internet as we know it, was kept secret for 13 whole days(!), buying valuable time for sys admins to patch their systems.

  2. Suldog

    First time by for me since you changed templates. Nice! It does a bit familiar to me, though… 😉

  3. Suldog

    Then again… Just goes to show the tricks memory plays. I looked at my own blog, after posting the above, and I see (aside from the color differences) a couple of other big variances from mine. So, never mind my slight friendly snark.

  4. Bill Toscano

    Free speech includes the ability to tell people how to steal and cheat?(If he did contact the T in advance, they should have hired him on the spot).

  5. Dan Kennedy

    Bill: The issue is prior restraint. You can sue me for libel. But if you know I’m about to libel you, you can’t go to court and prevent me from doing so. Your only recourse is after the fact.So yes. No prior restraint (except in the case of those three very serious exceptions) is the most basic guarantee of the First Amendment. To allow prior restraint in a case like this is to make a mockery of the Constitution.

  6. Peter Porcupine

    DK – wasn’t posting ‘Free T for Life’ instructions a template on how to steal? In fact, isn’t it possible that was WHY the T decided to sue? We have nothing but the hacker’s word that there was any atempt to share info with the T in a non-extortionate way.This may be less a free speech issue than a blackmail one.

  7. Dan Kennedy

    PP: You are making the usual mistake — determining whether you like the speech or not, and using that to judge whether it should have been censored. Where was the threat to national security, obscenity or incitement to violence in what the MIT kids were proposing to do?

  8. zadig

    wasn’t posting ‘Free T for Life’ instructions a template on how to steal? Yes, and Thomas Paine’s Common Sense was treason. What’s your point? Another example: Under our constitution, I can post instructions on how to pick locks, but if I pick a lock that belongs to someone else, I can be charged. Isn’t that neat, how words aren’t the same as deeds?Answer speech with more speech, not with lawsuits or criminal charges. Is it really necessary to point this out?

  9. MeTheSheeple

    By citing the “free for life” in its legal filings, the T is all but admitting its incompetence in purchasing, maintaining and repairing a complex system that reportedly cost $200 million.$200 million. Look at that figure for a minute. That’s a big number. Remember the T’s debt service costs? How do you think $200 million fits into that?It’s not quite clear from the reporting (and the forced government censorship) just what the security problem is. But it’s entirely possible this is related to security problems announced in March, which was five months ago, there’s a problem there that the MBTA is not picking up and fixing. If the CharlieCard is your primary threat to revenue, wouldn’t you want to guarantee it?Also take a look at the timeline. The injunction gives the MBTA 10 days to figure out its problem. It was 10 days from when the MBTA was notified on July 31 until the MBTA filed in court, right? So the MBTA already had the same advantage as it sought in court — and legally but dubiously achieved — without anything to show for it. Instead, they’re still citing the “free for life” of the hackers, which implies the MBTA is in no rush to fix the problem.Despite questions about legalities and ethics — INCLUDING ON THE MBTA’s SIDE — this is a deplorable case of management and proactive response.

  10. Peter Porcupine

    Zadig – your primer would be more impressive if there were not hate speech and hate crime statutes to criminalize thought, let alone speech.Words, mere words….

  11. Dan Kennedy

    PP: I have a challenge for you. Identify and explain a single hate-speech statute on the books anywhere in the country so that we can research it. Not hate crimes (I have a problem with that concept, too, but assault isn’t speech), but, rather, hate speech. And not a campus speech code, but an actual statute, since you say there are such things. We await your report!

  12. Aaron Read

    Worth noting, NPR’s All Things Considered reported on this yesterday (08/11) and mentioned that apparently the students “broke the Rain Forest Puppy disclosure rule” (an unwritten rule, but widely applied in a general sense) in that they DIDN’T contact the MBTA to give them a chance to fix the problem before publicizing the hack.However, even more troubling is that, according to the NPR report, this sets a precedent that any time there’s a computer hack that MIGHT be used for illegal activities (which is virtually 100% of them) then just reporting on the hack is considered aiding and abetting of a crime.If correct, this goes way beyond a Muzzle, Dan. This case needs to get before a higher court and be soundly overturned…the sooner the better.

  13. Steve

    Aaron – the NPR report and the Herald’s reporting are at odds with respect to the disclosure. It’s a key point – I wish there was some way of verifying this one way or the other. The T isn’t talking, apparently.

  14. zadig

    Peter Porcupine, I’m sorry I even have to point this out, but there’s a difference between labeling something a hate crime (where you include provable motive, such as what was said or expressed by the criminal, in determining the punishment) and prior restraint on speech. Hate crimes do not criminalize speech or thought; they take speech or thought into consideration when prosecuting the crime.So it’s not “just words”. We’re talking about before vs. after, among other principles.

  15. Aaron Read

    Aaron – the NPR report and the Herald’s reporting are at odds with respect to the disclosure. It’s a key point – I wish there was some way of verifying this one way or the other. The T isn’t talking, apparently.To be blunt, between NPR (via Wired) and the Herald, which news source would YOU trust to get it right in a case like this?I mean, granted, I run a pubradio station, so I’m a little biased. But gimme a break…you expect the Herald to be objective when it comes to the T?

  16. Jon Garfunkel

    There is much unnecessary confusion here. The MBTA filed in court documents that their vendor discovered the conference teaser online, and then informed the T, who contacted MIT, which presumably contacted the students. According to the MBTA, the students did not have their research paper ready until the lawsuit was filed.It’s possible that when student Zack Anderson said “We made first contact” he wasn’t fully aware of the above.

  17. Dan Kennedy

    What’s not in dispute is that Judge Woodlock is no friend of the First Amendment.

  18. Amused

    Dan: Did you teach him the use of the word “impending,” too?If an injunction has been granted, litigation is not impending.

  19. Steve

    Aaron – I’m essentially a nerd, and aware of the “ettiquette” regarding technical hacks. And those rules require quiet disclosure to the target before publication of the hack. (This is the “Rain Forest Puppy” rules referred to in the NPR report.) It is highly unlikely that 3 MIT students (or anyone attending DEFCON) would be unaware of this, or to go against this unwritten hacker’s code.Also, the NPR report was very lightly sourced on this point. (And yes, I’m a long-time fan and contributer to NPR.)In addition, there is a long, long history of main-stream, non-geek media messing up reports of technical matters. So in this matter, I am agnostic with respect to the accuracy of The Herald *or* NPR (with the exception of Ira Flatow and Science Friday – they at least try to get things right).Here is a CNET story (with an interview video) that I trust more to get things right. An excerpt on this point:The students told reporters that they had, on their own, asked their professor to initiate contact with the MBTA a week before the government agency contacted them on July 30 or July 31. But the process was delayed because professor Ron Rivest was at a security conference near San Francisco, and no contact with MBTA was made at the time.But then the conversations took a hostile turn when MBTA mentioned an FBI criminal investigation of the MIT students. In the “initial contact, they said the FBI was investigating and that was not–we didn’t find that to be a very pleasing way to start a nice dialogue with them. And we got a little concerned about what was happening,” said Anderson, one of the students. So this makes it seem like the real answer is somewhere in between. There *was* contact between the students and the MBTA before the conference, but it was adversarial. I think The Herald was closer to the mark than NPR.Another tidbit from a friend who just returned from DEFCON – even though the students couldn’t give their talk, the SLIDES for their talk were included in the CD prepared for the conference in advance and distributed to all attendees. So the info is already out there.

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