Massachusetts: MIT students deserve 'no First Amendment protection'

The state of Massachusetts is showing no signs of abandoning its fight to keep a restraining order in place against three MIT students who discovered subway card vulnerabilities. In fact, the state transit agency is escalating its rhetoric.

In a legal brief filed Thursday, the Massachusetts Bay Transportation Authority went so far as to claim that the three "defendants enjoy no protections under the First Amendment."

The document was filed around the same time that U.S. District Judge George O'Toole Jr. held a hearing in the case in his Boston courtroom. O'Toole denied a request from the students' attorneys to lift the gag order--and instead ordered the students to divulge to the transit agency by Friday more information about what they've done.

MBTA has demanded copies of documents including correspondence with the Defcon conference, a paper prepared for an MIT class, software, physical equipment, modified MBTA farecards, notes from meetings, and so on. MBTA wants to conduct a four-hour deposition of computer science major Zack Anderson at 9 a.m. ET Friday at their attorney's offices at 10 St. James Avenue, followed by a two-hour deposition of MIT professor Ron Rivest at 2:30 p.m ET. (The other student defendants are Alessandro Chiesa and R.J. Ryan.)

MBTA has asked O'Toole to convert the temporary restraining order, which automatically expires on Tuesday, to a longer-lasting preliminary injunction. To buttress its case, it has highlighted news coverage quoting PGP creator Phil Zimmermann as saying traditionally researchers give vendors a month's notice before they disclose a vulnerability in a system--which amounts to an implicit criticism of the MIT defendants and ammunition for the plaintiffs.

Also on Thursday, the Boston Globe published an editorial saying O'Toole "ought to lift" the gag order and that security concerns "should not trump First Amendment rights."

Here's an excerpt from the MBTA's 14-page brief, submitted by Ieuan Gael Mahony, a partner at the Holland & Knight law firm:

First Amendment protection does not extend to speech that advocates a violation of law, where the advocacy "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The Individual Defendants' conduct falls squarely within this well established zone of no protection.

First, unless restrained, the Individual Defendants would have given their Presentation, and related materials (which have not yet been made available) to one of the world's largest hacker conferences. Advocacy in favor of illegal behavior, in this context, is likely to incite or produce illegal behavior. Second, the Presentation, and likely the related code and materials, unequivocally constitute advocacy in favor of a violation of law.... the Individual Defendants are vigorously and energetically advocating illegal activity, and this advocacy, in the context of the DEFCON Conference, is both directed to inciting or producing imminent lawless action, and likely to produce such action. Therefore, the Individual Defendants enjoy no protections under the First Amendment.

The Individual Defendants' DEFCON presentation constitutes commercial speech. Commercial speech is any "speech that proposes a commercial transaction." Here, the Presentation is full of marketing, and self-promotional statements. It is not a research paper. As commercial speech advertising illegal activity, it receives no First Amendment protection.

The problem with the MBTA's arguments on this point is that the MIT students weren't proposing any commercial transaction--the MBTA is citing precedent relating to commercial advertising that aren't applicable to a student presentation at a security conference.

The students were going to give the talk at Defcon for free, were planning on giving the code away for free, and were offering to sell precisely nothing. If the mere existence of self-promotional statements and related puffery eliminated First Amendment protections, then every politician could be subject to court-imposed gag orders too.

MBTA also seems to argue that even if the students are engaging in noncommercial speech, they should nevertheless be gagged because it's (a) advocating illegal behavior and (b) likely to convince others to violate the law.

Advocating illegal behavior generally is legal; otherwise distributing step-by-step instructions on how to grow marijuana at home would be a criminal offense.

The exception to that general rule, according to the U.S. Supreme Court in the 1969 Brandenburg v. Ohio case, is this: "Constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

"Producing imminent lawless action?" That sure doesn't seem to describe a sober, critical, and probably slightly geekish talk at the Defcon conference. Another Supreme Court case says imminent lawless action by definition does not include "advocacy of illegal action at some indefinite future time."

But Judge O'Toole seems to favor MBTA's arguments. On Thursday, he chose not to modify the gag order to make it apply only to "nonpublic" information, even though the MBTA had been the party that suggested the change in the first place. For EFF and its clients, that can't be a good sign.