I wrote yesterday about BART shutting the cell phone network in several of the most trafficked BART stations. I know BART was facing a new issue. But BART made the wrong decision, according to a lot of outraged people. I hope this public debate leads BART and other agencies across the nation not to make the same mistake again, going forward. I hope we can learn from this and adopt a better practice–rather than shutting off technology to silence a protest criticizing a government agency.
I think this issue is a lens into several issues.
This post discusses one: government directing privately owned phone or Internet companies to silence speech. People sometimes call this censorship by proxy.
There are legal (and democratic) implications of censorship for proxy.
Harvard’s Yochai Benkler has written about this issue through the lens of Wikileaks, Paypal, and Amazon and his insights carry over.
To state my conclusion up front: I think we shouldn’t have a case-by-case, after-the-fact analysis for proxy censorship. That’s not helpful to police agencies trying to do their jobs and needing additional guidance. It’s not helpful to intermediaries, who now lack legal clarity. And it’s not helpful to us, whose elected and appointed officials may stray from our ideals at moments of crisis unless bound in advance by a set of laws.
BART claimed initially that they requested phone carriers to disable the relevant cell towers to silence the network. While BART later clarified this claim (BART can flip a switch), this claim reminded people of Egypt’s Mubarek requesting Egyptian ISPs to silence the Internet. It would remind Benkler of government pressure on Paypal, Amazon, and other intermediaries. It would remind some of the government pressure applied to ISPs to permit large-scale surveillance and data mining. It also reminds people of what’s happening right now in England. There’s a vigorous public debate in England over shutting down private instant messaging services like Blackberry’s or public networks like Twitter’s. In that debate, Twitter emphasized that “the Tweets must flow“–Twitter would not take down the service. Twitter will continue to face pressure in moments of apparent crisis, as will all intermediaries, including from financial processors to large ISPs.
I mentioned that the BART’s action provides convenient arguments and political cover for repressive dictatorships around the world. If the US does it, why can’t China or Egypt? Evgeny Morozov, who often looks at the world differently than I do, has an excellent piece on this point in the Wall Street Journal today.
The US should be a leader and set the democratic standard. Anything less will seem hypocritical and send a signal to other governments. We are the “land of the free” and other nations will aim lower than our bar; so we should set the international bar high. What we need is a prophylactic approach–an approach that binds us to the right principle in advance, before the crisis mentality kicks in. A law, in advance, should forbid government from requesting proxy censorship, and require the intermediaries to make such requests public. Binding ourselves to freedom, not censorship, in advance is common in a democracy. Famously like Odysseus binding himself to the mast before approaching the Sirens, we can increase our freedom by “binding” ourselves in advance to a principle against proxy censorship. The Odysseus metaphor is a common constitutional metaphor; the Constitution binds us to a set of core commitments to freedom and democracy that officials cannot override in moments of crisis.
We should adopt a speech-protecting principle in advance, before a crisis. Having a principle in advance will help us better balance safety and liberty because striking that balance is harder when the apparent crisis is already sounding in our ears.