A Stitch in Haste

It’s about time:

Today, a federal judge lifted an unconstitutional gag order that had prevented three Massachusetts Institute of Technology (MIT) students from disclosing academic research regarding vulnerabilities in Boston’s transit fare payment system. The court found that the Massachusetts Bay Transportation Agency (MBTA) had no likelihood of success on the merits of its claim under the federal computer intrusion law and denied the transit agency’s request for a five-month injunction.
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The students had planned to present their findings earlier this month at DEFCON, a security conference held in Las Vegas, while leaving out key details that would let others exploit the vulnerability. The students met with the MBTA about a week before the conference and voluntarily provided a confidential vulnerability report to the transit agency. However, the MBTA subsequently sued the students and MIT in United States District Court in Massachusetts less than 48 hours before the scheduled presentation, without providing any advance notice to the students.
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Although the gag order was lifted, the MBTA’s litigation against the students still continues.

Unfortunately, no one seems to be making the latest decision, the one lifting the gag order, available for review. What concerns me is that, best as I can tell from the media accounts, the order did not acknowledge the original prior restraint decree as patently unconstitutional ab initio. The judge merely defaulted to the ordinary rules for any preliminary injunction. Since he determined that the MBTA was “unlikely to prevail on the merits” in the ultimate litigation, a preliminary injunction could not be granted (or in this case sustained after having been granted). That’s how every motion for an injunction is evaluated, and does not recognize the far higher standard for censorship: that at the very least a grave threat to national security or troops in combat must be at stake — see New York Times v. U.S., 403 U.S. 713 (1971). A few subway fares lost to hackers of course does not qualify.

The judicial doctrine, which I do not blindly embrace, that constitutional questions should be avoided when non-constitutional alternatives exist, surely ought not apply when the governmental abuse is so obviously unconstitutional, and so jurisprudentially obscene, that not addressing the constitutional question in essence legitimizes the unconstitutional act itself, or at least the illegitimate analytical framework which spawned the unconstitutional act in the first place.

The First Amendment, and those whom it protects, deserve better.

Filed under: First Amendment - Speech, Law Enforcement Abuses, Libertarianism