MIT students: Mass. agency 'misrepresents' what led to lawsuit

Both parties in the Massachusetts Bay Transportation Authority lawsuit tell different stories about the week of negotiations that led to a restraining order against a Defcon talk.

Declan McCullagh
Declan McCullagh Former Senior Writer

Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.

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Three MIT students are disputing the Massachusetts transit agency's version of the events that led to the state filing a lawsuit last week--and obtaining a restraining order against their talk on subway card security scheduled for Sunday.

The latest dispute originates in comments made by to CNET News by Massachusetts Bay Transportation Authority spokesman Joe Pesaturo in in a report published Monday. In his e-mail to us, he said the students "agreed to provide the MBTA with a copy of the presentation" scheduled for the Defcon hacker conference on Sunday but never did.

A response posted Tuesday by the Electronic Frontier Foundation, which is representing the students, said MBTA "misrepresents" the situation:

After the Monday meeting, the students understood that the MBTA's concerns were resolved, and that the students were to provide a confidential vulnerability assessment by the end of the week. Contrary to the MBTA statement, the students did not believe that the MBTA wanted to see a copy of the presentation slides, and they did not agree to provide them to the MBTA.

(It is undisputed that the students--Zack Anderson, R.J. Ryan, and Alessandro Chiesa--wrote a separate analysis (PDF) for the MBTA marked "confidential" and presented it to the agency.)

Opposing parties in lawsuits often tell different stories. Human memories are imperfect. People may honestly remember the same sequence of events differently. So why is this particular dispute important?

One reason is that the judge in this lawsuit has until August 19 to renew the restraining order (by turning it into a preliminary injunction) or let it expire. Whoever can reasonably claim to have acted in good faith will have a better chance of prevailing.

It's unclear who's telling the truth; if the lawsuit continues, e-mails and spoken testimony will probably answer these questions. But it does seem likely that the MBTA requested a copy of the Defcon presentation--they knew it was scheduled; why would they not want to see it?--and never received it. The defendants would have had a very good reason for this; the slides are prepared with a hacker audience in mind and include warnings like "AND THIS IS VERY ILLEGAL!"

Oops. This is what lawyers call an "admission against interest."

Another bit of unresolved intrigue is that the MBTA told us on Monday that it wanted to meet with the students again. EFF has steadfastly refused to say whether it would consider such a meeting--making it, uncharacteristically, even less forthcoming than a bunch of government bureaucrats.

[Update: See our related story on a court hearing scheduled for Thursday in this case, and what both sides plan to ask the judge.]