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Technology: Help Or Hindrance To Law Enforcement?

TONY COX, host: I'm Tony Cox, and this is TELL ME MORE, from NPR News. I'm sitting in for Michel Martin. Coming in, increasing tension as Section 8 housing vouchers have helped some blacks and Latinos move into white neighborhoods. We'll talk about why local officials are pushing back, in some cases. More on that in a few moments. But first, hackers have launched a second strike against transit police in San Francisco. Members of the group Anonymous infiltrated the website of the Bay Area Rapid Transit, or BART Police Union, on Wednesday, and posted personal information about several officers.

Both hacker attacks were in retaliation for BART's decision to cut off cell phone coverage in four underground metro stops last week. That move was the agency's attempt to disrupt a planned protest sparked by the killing of a homeless man by a BART officer in July. Now, a debate is raging over whether BART went too far by interfering with wireless access. Did this violate protestors' rights, or protect public safety?

To talk more about this, we are joined now by James Temple. He is a technology reporter and commentator for The San Francisco Chronicle. He writes the column Dot. Commentary. We are also joined by Lee Tien. He is a senior staff attorney with the Electronic Frontier Foundation. That's an organization that specializes in free speech in the digital age. Welcome to the program.

JAMES TEMPLE: Thank you for having me on.

COX: We are going to begin with this: BART has so far continued to defend its decision, saying it acted in the interest of public safety. Here's a clip from BART spokesperson Linton Johnson at a press conference earlier in the week.


LINTON JOHNSON: This is not a choice that we wanted to make. We were forced into this decision by the protestors. Remember, and I want to make this clear: BART loves free speech.

COX: James Temple, according to the Associated Press and our own research here, this is the first time authorities in this country have shut off wireless access to prevent a demonstration. What was the range of reaction in the Bay Area to BART shutting down cell phone coverage the way that it did?

TEMPLE: Sure. Well, it definitely covered the map. If you look at the comments section on any of the stories we've written about it, they go all over the place, from a lot of frustrated transit riders who thought, you know, protestors had no business blocking - disrupting service in response to this to, you know, people generally just standing up for what BART - the reactions of BART police, to, of course, plenty of commentators and commenters on the sight and in free speech groups, etc., who say that BART had no business shutting down the cell phone service, that it was a clear violation of the First Amendment.

COX: Lee Tien, you are representing one of the groups that was very critical of BART's move. Explain what your complaint exactly is.

LEE TIEN: Well, thanks very much. The basic complaint is that BART squelched a lot of people's speech before they ever had a chance to speak. And in the world of First Amendment law or free speech law, that's called a prior restraint. And it's the most - it's the gravest and most serious encroachment on speech rights, worse than, say, punishing speech after the fact.

COX: Are there ever extenuating circumstances? And if so, what do you think BART should have done in this case?

TIEN: Well, first of all, it's not an absolute prohibition against prior restraint. So yeah, there are extenuating circumstances. But probably the most important point here is that BART took the law into his own hands by turning off the cell phone service, and ideally, they probably should have gone to court to get an order permitting them to do so.

COX: Let me just say that we did reach out to BART for comments - several times, as a matter of fact - to join the conversation, but we have not yet had a response. Lee, let me ask you a follow-up. Do you think that, as a result of the action taken by BART, that there is likely to be some sort of legal response from those who are opposed to what BART did to prevent the organization from being able to do this again?

TIEN: Well, right now, I don't - I have - I am told that groups like the ACLU are not planning to sue over this right now, and my understanding is that my organization isn't, either. On the other hand, I have heard that the Federal Communications Commission is looking into the incident, as well as the general question of emergency or interruption of communications services. And I think that there's going to be a lot of emphasis on making sure that this doesn't happen again.

COX: If you're just joining us, you're listening to TELL ME MORE, from NPR News. I'm Tony Cox. We are talking about how law enforcement is having to adapt to the digital age. Our guests are Lee Tien of the Electronic Frontier Foundation, and James Temple a technology reporter and columnist for The San Francisco Chronicle. James, to that point, you have been writing columns, and one in particular where you said everyone was stupid. I'm sort of paraphrased a little bit. What has been the response - first of all, tell us why you took that position, and secondly, tell us what the response to your column has been.

TEMPLE: Sure. Well, I mean, my point here was just that there's sort of plenty of criticism to go around. You know, I do think that BART - that it's fair to say that BART overstepped, and that it was - especially in light of the fact that there never really ended up being much of a protest on the day that they made this move. You know, it ended up looking like it took this over aggressively step for no particular reason. So, you know, and I seriously question the effectiveness of the policy as a demonstration deterrent.

You know, if you have a whole bunch of people show up intent on causing chaos, I think they're going to succeed at that, whether or not they can log onto to their Twitter account. So as a practical matter, I think BART should have thought twice about whether it wanted to pick a First Amendment fight over this issue. But, you know, am I - on the other hand, I also made the point that there are a lot of people that are kind of taking firm positions and saying one side is - group A is right, and group B is a horrible monster. And I just think that there's plenty of scolding to go around.

You know, the demonstrators - you know, as we ended up reporting, you know, the demonstrators in the last protest, it did get somewhat out of hand. There were about 100 protestors that took part. They shoved BART security officers. One man climbed on top of a train. Someone blocked the doors of a train. There were people in masks that were hammering on ticket machines. So, you know, however else they might portray it, this wasn't some sort of MLK-style peaceful sit-in here. And then, of course, the hacking groups - and particularly, this hack that happened yesterday - are pretty hard to defend on any grounds, where they've now leaked the personal information of BART riders, and now the personal addresses of the BART police officers.

And I should point out here that Anonymous took credit for the first hacking. I don't think, at this point - at least the last that I read - they had in the second case. It seems like from our - a colleague of mine reported that it was someone who had identified herself as a French girl who taught herself computer programming.

COX: I read that and...

TEMPLE: (unintelligible) hacking.

COX: I read that. I want to talk about that more with Lee Tien, as a matter of fact. But let me go back to the actions of the second hacking. And we are also told, as a matter of fact, in the - it's reported in the Chronicle's website today that there is another protest planned, possibly, for Monday, this coming Monday.

This group that hacked in and gave out the information of officers, do you think that's going too far, also, Lee Tien?

TIEN: Oh, definitely. I mean, I don't have any disagreement with, you know, James' point that there's a whole lot of blame to go around. I mean, it's...

COX: So where does this lead us? Where would you say, Lee Tien, this is leading us? BART takes an action. First of all, there's the person who was shot. There's an expected protest. BART takes an action to prevent the protest from becoming whatever it thought it might turn out to be. People are upset. Hacking takes place, and then a second group of hacking takes place.

Where are we headed with this?

TIEN: Well, this is democracy. There are - we have plenty of disputes and disagreements about things, and we have a continuing, hopefully peaceful social dialogue that goes on about this.

COX: Well, would you...

TIEN: Obviously, it isn't always peaceful, and it isn't always just pure dialogue. It's often speech mixed with action. You know, that's what protest marches are. That's what rallies are. Indeed, you know, throughout history, political controversies have been accompanied by all sorts of things like that. You know, you don't have to go very far back to think about violence or riots during the civil rights movement, as well as very peaceful sit-ins.

COX: Well, I've got about 30 seconds for this question and answer, Lee, and it's whether or not the technology has, so far, outstripped law enforcement, that law enforcement is having to find ways and is behind the curve on how to deal with this digital crime.

TIEN: Yeah. I don't really think so, quite honestly. The, you know, technology helps the police, as well. They also have cell phones. They also are able to coordinate.

And the other important point is that public safety isn't simply on the side of, say, shutting down communication services. Being able to communicate with each other, being more connected and wired, that's also good for the public safety.

COX: It'll be interesting to see, James Temple, how the community in San Francisco and beyond, actually, responds to this, and we'll see whether or not this planned protest actually takes place this coming Monday and what BART's response to it will be on that day.

James Temple, a reporter and columnist for the San Francisco Chronicle. Lee Tien, a senior staff attorney with the Electronic Frontier Foundation - both joining us by phone from the Bay Area.

Thank you very much.

TEMPLE: Thank you.

TIEN: Thank you. Transcript provided by NPR, Copyright NPR.