Marvin Ammori

For the past few years, I have been a Term Member of the Council on Foreign Relations. It’s a pretty amazing organization. I’ve seen speakers such as Secretary Clinton, Senator Lugar, and the founder of China’s leading search engine.  The Council also has some very talented and brilliant members, the most famous of which is either Angelina Jolie or Bill Clinton.

I received an email from the Council that was a call for nominations. And several of my friends have recently asked me about the Council and are applying for Term Membership. So this is my attempt to get the word out. I would love to have more members who have backgrounds in technology policy–or who are my old friends. Either one.

If you are interested in joining and I could be helpful in providing advice, please feel free to ask.

Applications are due October 1 for life Members and November 1 for Term Members. Details are here if interested.

The Information Technology and Innovation Foundation is hosting a panel discussion on Richard Bennett’s report “Spectrum Policy for Innovation.” Panelists include Larry Downes (Tech Freedom), Rick Kaplan (Wireless Telecommunications Bureau), Blair Levin (Aspen Institute), David Redl (Counsel, House Committee on Energy and Commerce), and Rhod Shaw (Alpine Group).

Orin Kerr discusses the Computer Fraud and Abuse Act’s troubling language relating to the broad scope of information covered, and proposes a legislative fix to which both the DOJ and CFAA’s critics should be amenable.

The band and I decided to change our theme through WordPress.

I think this theme is cleaner and more in line with current trends in design than the previous one.

Is it all just hype? Ten years after the Sept. 11 attacks, many lawmakers and intelligence officials say they fear the next such attack could be triggered with the click of a mouse.

So is attribution necessary? Yes and No. If you want to strike back, yes. If you want to stop an attack from being successful, no.  So simple, yet so problematic.  Correct attribution makes the attack justified. False attribution makes the attacking state an international pariah.

An interesting opinion piece in the Wall Street Journal today.  When large numbers of San Francisco residents, alerted by cellphone text messaging, appeared  on Valentine’s Day in 2006 to engage in a joyous public pillow fight, they began a yearly tradition that is regretted only by the public officials who are obliged to pay for the disposal of mountains of soggy feathers.

Yet participants in more recent public gatherings, also quickly assembled via electronic messaging, have acted far more dangerously and sometimes lawlessly. In doing so, they have raised difficult policy and legal issues, including questions relating to the role of the First Amendment.

This weekend, I am honored to be a keynote speaker at Open Video Conference 2011. I will be discussing how public policy affects the online video ecosystem. Before the keynote, I will also co-lead some sessions on “making the map” of the ecosystem. I will be leading the sessions with my friends Nick Bramble of Yale Law School and Sky Fernandes of Centripetal Capital, among others. I have a history of excellent co-leaders at the Open Video Conference; in 2009, with an overflowing room eating sandwiches, Tim Wu and I led about network neutrality and an open video ecosystem.

At OVC, I always learn far far more from the participants than I could ever teach them. The participants include leading techies, creatives, and visionaries shaping video on the Internet. I’m looking forward to the conference and thank the organizers for inviting me once again to contribute and learn.

Yesterday, Twitter announced the hiring of its Head of Global Public Policy–Colin Crowell. Colin is a veteran known to everyone in telecom and Internet policy circles. He’s creative, super smart, and strategic. And avid readers of this blog (hi mom!) will remember I praised Colin’s work at the FCC when he stepped out of government, after decades of service.

Congrats to him on the job, and congrats to Twitter on the hire.

I was quoted in the Washington Post yesterday on whether the BART’s disruption of cell service, to disrupt a protest, violated the First Amendment. I said it’s a “hard question.” And it is. But I do think the answer is yes–the disruption violated the First Amendment.

It’s a hard question because one of several tests may apply. I have written a half dozen posts on the issue, so here I’ll include a top line summary, using First Amendment terms, on why I think the legal tests point toward a First Amendment violation (based on the facts available). I also want to note that BART’s response to the public backlash has at times been encouraging; the Post article noted the public discussion that BART has helped facilitate in thinking through its policy going forward.

But here is my attempt to apply the doctrine to the particular disruption here.

1. If the BART stations are nonpublic forums, then banning an entire medium of speech so broadly likely fails the test for nonpublic forums. See Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc. and International Society for Krishna Consciousness, Inc. v. Lee. It fails the test because the disruption likely fails both prongs of the test (and need only fail one): it was both unreasonable and likely viewpoint based.

2. If the cell service at the BART station is seen as a forum itself (and not a medium of speech), then it is either a nonpublic forum or a designated public forum. If a nonpublic forum, the test above applies. If a designated public forum, then a higher test applies. A flat ban would have to be narrowly tailored to a compelling purpose–BART would likely fail to show narrow tailoring. If the disruption were not a ban (as it appears) but a content-neutral time, place, and manner restriction, then the government would need narrow tailoring to an important interest. Again, narrow tailoring would be difficult to show, though less difficult than for a ban.

3. Finally, BART officials have invoked Brandenburg v. Ohio, which sets a very high bar for suppressing speech, requiring   incitement to imminent lawlessness. It’s taught in law schools as a major bulwark against government silencing speech. If BART is claiming to meet this test, it’s like claiming its staff can run four-minute miles.

The ACLU of California also has an excellent analysis in this letter.