Here is where law, policy and technology get interesting: When can a government entity shut down service in the name of social order? Some might raise the bar of the question and ask: Should a government entity have the ability to shut down a communication service? If so, what is the "test," i.e. under what circumstances? The inquiry gets even better: Who gets to the define and set the bar?
Those are the questions at stake in a very interesting challenge taking shape out of the events of the riot in Oakland last July.
As law enforcement grappled with how to contain the growing unrest that grew from protests over the fatal subway officer shooting, the lessons of Arab spring were not lost on them. The use of communication technologies such as SSM, Facebook, and Twitter stoked the rioters and helped them evade police intervention. BART officials, who are government officials because it is a service of the municipality, shut down the service without notice to any other governmental entity including the F.C.C. or even the California Public Utilities Commission. (I am admittedly fuzzy on the technical facts, and would appreciate if anyone who understands how they can do this, please comment? My guess is that BART has switches -- including a basic power switch -- to devises within its subway station system that transmit signals?)
The F.C.C. is looking for comment. For those who did not take Administrative Law, "comment" is not something to write at the end of an article or blog, but an official part of administrative rule-making. As a way to appease those who criticize the administrative law for being outside the traditional democratic system, the "Fourth Branch," as it were, has built "notice" and "comment" into its process. I do not object to administrative law or the federal agency system (as many conservatives do), but like just about everything else in Washington I recognize that it can be out of touch with the people of this country. Therefore, it is important for real, everyday people to know that they have an opportunity to submit a comment, and should do so. This is an important matter, very relevant to our lives, and with expansive implications.
The questions above give a hint about that expansiveness. First is the obvious question of whether telecommunications is a right or a privilege, and if it is a right, are there any exceptions such as the threat of loss to life and property that could occur in the midst of a social protest movement that has turned into a riot. We laud this activity when it is on some other country's turf if it suits our politics, Libya for example, why not let it rip here? Second, who decides? Is this a matter for Congress? The F.C.C.? Or will it ultimately go up to the Supreme Court? (That is my guess on both process and substance.) Third, if Congress is as corrupted by Big Money and back door deals as many would believe, does administrative law ironically provide a more open door to public input? It might, in my view, which is why everyone should get in the act and comment. Here's where you might start to learn more: http://apps.fcc.gov/ecfs/Upload/
By the way, I won't play coy. Here is what I think: The First Amendment should be interpreted to imbue its rights to technical forms of communications, but, like all rules, including the "absolute" First Amendment, there are exceptions. The threat to life and property counts, although what is harder to determine is the test by which one decides: "fighting words," or imminent or potential violence strikes me as appropriate in existing law as a good enough test when it applies to communications. And, by the way, I do think the F.C.C. has, or should have, the authority to decide given the notice and comment process. Waiting for Congress seems like waiting for Godot, and I am not even sure that in this histrionic environment I trust our representatives there in the collective to come up with anything better than that which already exist in First Amendment jurisprudence.
Those are my views. What are yours? And shouldn't you let the F.C.C. know them?
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