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Indeed “they” are. The American Civil Liberties Union (ACLU) characterized the agency’s decision as “glaringly small-minded,” noting that people in other countries “are using mobile devices to organize protests against repressive regimes,” and asking whether Americans are “willing to tolerate the same silencing of protest here in the United States?” The organization further notes that government shutdowns might not be limited to phone service. “These protestors were using public transportation to get to the demonstration–should the government be able to shut that down too?” they ask.
Aaron Caplan, a professor at Loyola Law School in Los Angeles who specializes in free-speech issues, focused on an equally vexing point. ”We can arrest and prosecute people for the crimes they commit,” he said. “You are not allowed to shut down people’s cellphones and prevent them from speaking because you think they might commit a crime in the future.” Gene Policinski, executive director of the First Amendment Center, noted that there is a balance between free speech and public safety. “An agency like BART has to be held to a very high standard,” he said. Yet he conceded Caplan’s point. “First of all, it has to be an immediate threat, not just the mere supposition that there might be one. And I think the response has to be what a court would consider reasonable, so it has to be the minimum amount of restraint on free expression,” he added.
University of Michigan law professor Len Niehoff, who specializes in First Amendment and media law issues, contended the shutdown made no distinction between “peaceful or unpeaceful, lawful or unlawful,” expressions of free speech, which he characterized as “constitutionally, very problematic.” And while he noted that government has the right to break up demonstrations in areas where they are prohibited and/or pose a risk to public safety, “to keep people from talking about what they might or might not do, based on the idea that they might all agree to violate the law, is positively Orwellian,” he said.
Another protest, one based on the shutdown itself, not the shooting of Charles Hill, is ostensibly scheduled for Monday at 5 p.m. The online “hacktivist” group known as Anonymous has posted a notice to that effect on its Web site, saying it will be a “peaceful protest at Civic Center station to illustrate the solidarity with people we once knew and to stand up for your rights and those of your fellow citizens.” The site further notes that protesters will be wearing “’blood’ stained shirts for remembrance to (sic) the blood that is on the hands of the BART police.”
Anonymous has been linked to several cyber attacks around the world, including one which shut down the Master Card Web site in 2010. It has also been credited with successfully hacking Amazon, PayPal, MasterCard, Visa, Sony, major law and security firms, and foreign governments. The group is able to do so with a technique known as a “distributed denial of service attack” (DDoS). DDoS takes down a Web server when a lot of people deliberately overwhelm bandwidth capacity of that server. The closing statement on the group’s Web site: “We are Anonymous, We are legion, We never forgive, We never forget, Expect us.”
What Americans are being forced to expect is a daunting intersection between technology and anarchy — or totalitarianism. Ironically, it is the anarchy of technologically-organized flash demonstrations, or as we have seen in Britain, riots, that may lead to technologically-organized government suppression. And while such suppression would most likely to be imposed, it is not inconceivable that it may be demanded by the public itself, outraged by a constant string of disruptions to everyday life. Which parts of the Constitution Americans might be willing to sacrifice for “a little peace and quiet” is anyone’s guess.
How complicated is this issue? It could be said that BART did the wrong thing for all the right reasons — or the right thing for all the wrong reasons. Either way, one thing is certain: technology and the Constitution are on a collision course. It is a collision that may radically alter our conceptions regarding rights and responsibilities.
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