Well, well. It looks like the ongoing protests are inspiring some extra creativity from some musicians. A bunch of people have been sending around The Day The LOLcats Died, an obviously play on a song you all know: If you're a bit more into hip hop than rock and roll, there's this song, by Okwerdz, called: The American Government wants to CENSOR the Internet: If there are any others, feel free to leave some comments...

We were wondering when our elected officials would start realizing just how toxic SOPA and PIPA have become. It appears it's happening today, along with the online protests. Rep. Lee Terry, from Nebraska -- who just last week expressed some concerns about the bill at CES, but still appeared committed to it -- has announced that he's removing his name as a co-sponsor of the bill, becoming the first US Representative to do so. Over in the Senate, Senator Jerry Moran did so way back in June -- and has since become a leading voice against PIPA. Terry's spokesperson claimed that after listening to some of the complaints, he realized that the bill just has too many problems, and could cause more harm than good -- especially for the open internet. Good for him. Now... who's next?

As more and more sites announced plans to black out their sites today in protest of Congress considering both PIPA and SOPA, a few people asked us if we would take part in the blackout as well. We definitely thought about it, but decided that was not the best use of this site. The key point behind the blackouts for most sites is to alert their users just how bad these legislative proposals are. For that purpose, Techdirt wouldn't gain very much, if anything, in going dark. If you've been reading this site at all over the past few months to a year (year plus, going back to the original COICA bill), you'd already be well aware of why these efforts are tremendously dangerous. Furthermore, we believed that we'd be able to provide even more value in covering what happens today, as these protests roll out. The fact that a couple of pro-SOPA lobbyists joked that they hoped we'd go dark (with one even asking "how much" it would take to get us to stop talking about this issue for the day), gave us even more reasons to keep publishing.

Obviously, however, we support the actions lots of other sites have taken in response to this ridiculous attempt to regulate the internet, based on fairy tales and no actual evidence from the legacy content businesses. The sites that have decided to go with a full blackout deserve the utmost respect for taking a true stand on the matter. Similarly, some other sites are adding their voice to the protest in different ways -- whether it's highlighting problems with the bills or pushing people to call Congress.

That last point seemed like a good idea to us, so with each post today, we'll also be posting a widget that will allow you to call your Senators' office, and express your displeasure with PIPA. We've also "grayed out" much of the site, and have a specific link at the top to StopTheWall.us, where you can find out more. I will actually be doing a bunch of meetings with Senate staffers later today, and I hope (and fully expect) to hear phones ringing off the hook while I'm there.

As promised, Google has decided to "go big" with its home page to join Wikipedia, Reddit and others in protesting SOPA/PIPA. The logo on the home page is blacked out: And clicking the logo takes you to a protest page asking people to "take action" by signing a petition: I'll admit that I'm a little surprised that Google went with a petition rather than driving phone calls to Congress, though the sheer numbers may make this one petition that Congress actually acknowledges. Either way, it's a strong statement of Google's support for the protest against these bills. Google also has an information page that explains how SOPA and PIPA will censor the internet, kill jobs & innovation and won't stop piracy at all. It also includes a collection of anti-SOPA/PIPA videos...

Last year, we discussed whether or not things like Operation Payback by Anonymous (DDoSing sites of organizations they didn't like) was really the equivalent of a modern-day sit-in protest, rather than a criminal hacking, as law enforcement (and victims) wanted to allege. It appears that this may be a question that courts are going to need to answer. Nick points us to the news that the lawyer for a homeless guy accused of setting up a DDoS on the City of Santa Cruz (he was pissed about a law) is claiming that DDoS attacks are legal and protected speech in the form of a protest:

“There’s no such thing as a DDoS ‘attack’,” Leiderman said. “A DDoS is a protest, it’s a digital sit in. It is no different than physically occupying a space. It’s not a crime, it’s speech.”

Leiderman said the crimes shouldn’t be prosecuted at all. “Nothing was malicious, there was no malware, no Trojans. This was merely a digital sit in. It is no different from occupying the Woolworth’s lunch counter in the civil rights era.”

In this case, the case has nothing to do with Anonymous, Lulzsec or any of those high profile groups, but they might want to pay attention to the case. It seems that some of those already arrested in various sweeps against Anonymous and Lulzsec have indicated that they're considering the same defense strategy. In that last one, involving Mercedes Haefer, who was charged with being a part of Anonymous, her lawyer is pointing out that President Obama has asked supporters to overload the switchboards of Congress -- and that's a form of a denial of service attack:

"I think this is a political persecution, end of story," Cohen said. "This administration wants to send a message to those who would register their opposition: 'you come after us, we're going to come after you.' That's what has happened in the Eric Holder Department of Justice."

"When Obama orders supporters to inundate the switchboards of Congress, that's good politics, when a bunch of kids decide to send a political message with roots going back to the civil rights movement and the revolution, it's something else," Cohen told TPM, stipulating that he was not indicating that his client was even involved. "Barack Obama urged people to shutdown the switchboard, he's not indicted."

Not surprisingly, I'm sympathetic to this argument, though I do wonder how well it'll play in court. In both of these cases, I think a decent case can be made that the actions are a form of speech, in that they were both designed to protest certain actions. The question is whether or not the courts will recognize them as legitimate and protected protests. And that may very well come down to the judges in the cases.

Before I get into the details of this post, I will say that I don't quite get the purpose of the whole "Occupy Wall Street" protests. I mean, I guess that they're supposed to be some sort of American version of the Arab Spring protests or the riots in London, but, honestly -- like many of these things in the US -- they strike me as people protesting for the sake of protesting. I just don't quite see the point. The folks in the Middle East had real problems with their government. Protesting against a "financial system"? What does that do?

That said, since we've been writing so much about law enforcement and videotaping their actions, one story coming out of the ongoing protests is worth looking at in more detail. On Saturday, there were a bunch of arrests, but the story getting a lot of attention was the decision by one officer (according to this blog, his badge says "Bologna") to walk up to a group of protesting women and spray their eyes, point blank, with pepper spray. You can see the slow motion video, which highlights the officer's actions: From that video, it seems pretty clear that the guy just walks up to a group of the protesters, sprays them, and walks away. So here's where it gets more interesting. The NY Police Department have insisted to the NY Times that the pepper spraying was appropriate, even as they admit they only use pepper spray in extraordinary circumstances:

The Police Department’s chief spokesman, Paul J. Browne, said the police had used the pepper spray “appropriately.”

“Pepper spray was used once,” he added, “after individuals confronted officers and tried to prevent them from deploying a mesh barrier — something that was edited out or otherwise not captured in the video.”

Of course, accounts in that same article from one of the women who was sprayed (who wasn't arrested) suggests a different story. While admitting there were some "rough" people there, she says that she and the folks around her had done nothing to cause the police to single them out with pepper spray. Furthermore, the folks at USLaw.com have more information including an additional video taken by one of the pepper-sprayed women. While right as the pepper spraying happens the camera is facing away from the action, and there was a lot of screaming and activity a bit earlier, it's hard to see how anything anyone did in that area provoked the sudden spraying: On the YouTube page for that video, the woman states that, for the most part, she supports the police force and believes they're good and honorable people. Right before she was sprayed in the video, she appears to be asking police politely where they want her to go.

Yes, this was a chaotic situation with lots of people yelling and lots of movement. But the evidence from the two videos (and two of the women sprayed) certainly suggests that the police spokesperson is lying in saying that the use here was "appropriate." I find this interesting not because of anything to do with the protest itself, but because of the way the ability to record and upload videos like this is really able to impact and change the debate. In the past, it would have been the police's word against the protesters, and lots of people would have simply believed the police. But, as chaotic as the situation may be, law enforcement around the world is going to have to learn that they can't hide behind false claims of acting appropriately if they didn't, in fact, act appropriately.

Following the astounding and likely illegal decision by BART to shut down mobile phone service in stations in an attempt to block protesters from being able to communicate, Christopher Soghoian and Jacob Appelbaum filed Freedom of Information Act requests for the internal communications concerning this decision. Those communications have now been released and can be seen here (pdf) or embedded below.

The interesting stuff is closer to the end. Basically, someone from BART, Dirk Peters, sent a single email to ForzaTelecom, who must be BART's partner in managing the cell service, saying that they needed it shut off:

Gentlemen,
The BART Police require the M-Line wireless from the Trans Bay Tube Portal to the Balboa Park Station, to be shut down today between 4pm & 8.
Steve , please help to notify all carriers.

The "Steve" in question appears to be Steve Dutto from Forza, who replied and sent an email to various telcos (including Verizon Wireless, Sprint, T-Mobile, AT&T and MetroPCS), saying

I have spoken to or left a voicemail for most of you. We have been told that we must shut down the DAS system from the Oakland portal to the Balboa St. Station from 4-8 pm. We do not believe that any of the carriers need to do anything, the nodes will be turned down from the Civic Center Headend and then turned back up when given the ok from the BART police.

The emails also note that beyond cell service, BART also shut down its WiFi service -- also via a single email from a BART representative to the WiFi partner, WiFi Rail, who noted that they were "happy to help in any way." Nice of them.

We'd already noted that the FCC was investigating whether or not BART broke the law when it decided to turn off mobile phone service in an effort to stop some protests (a direct attack on a specific form of speech). Now, some public interest groups, including Public Knowledge, the EFF and the Center for Democracy & Technology, have specifically asked the FCC to state that BART broke the law and that local government agencies cannot choose to turn off mobile phone networks:

Current events around the country and the world highlight the urgency and importance of this issue. Growing concern over “flash mob” crimes has led some policymakers to attempt to target communications network for increased scrutiny. In the wake of riots in London, politicians in the United Kingdom have proposed increased governmental surveillance of, access to, and control over social media platforms and other communications media. Such interference with communications has a long history of being used to suppress civil rights protests over a wide variety of traditional and new media, from distributing flyers to television broadcasting.

This tendency, multiplied by the number of state and local agencies willing to exercise control over CMRS, could wreak complete havoc on the reliability of CMRS service by rendering it dependent on the discretion of the most-restrictive authority in any given region. Moreover, inconsistency and unreliability of service would be only two of the many resulting problems. If local government agencies claimed the authority to impede or restrict communications at their own discretion, users’ rights to free speech, just and reasonable access, and emergency services would all be imperiled, subject to local determinations of the relative values of these rights as balanced against the peculiar interests of the restricting authority.

As made plain by the negative ramifications of BART’s alternative proposal, statutes exist – and have been upheld by the courts – to prevent actions like BART’s for good reason. When local and state agencies determine a need to restrict communications, they must work with local public utilities or communications agencies and the Commission pursuant to recognized processes. It is untenable legally and practically to allow the whim of any person or agency that has access to network hardware to dictate who is entitled to access communications services and when.

BART’s past shutdown of CMRS, and its apparent plans for similar shutdowns in the future, raise grave concerns. More troubling, other local agencies may use similar shutdowns of CMRS networks in the future--potentially disrupitng access to communications relating to public safety and protected speech. For the above-mentioned reasons, the Commission should issue a declaratory ruling clarifying that such shutdowns by local governments violate the Act.

When BART first announced that it had shut off mobile phone service in a station to stop protesters, it was seen as a brief aside by the transit operation. The news reports covering the story buried that part of the story as not very important. Then people began to realize it was a huge deal and perhaps a violation of telecom law and the First Amendment, and quite an uproar ensued. Not surprisingly, the folks at BART are now realizing that perhaps they were a bit hasty. BART held an emergency board meeting solely on this issue and announced that BART will only use such measures "in an extreme case where the public is imminently at risk." Of course, what constitutes such an "extreme case" is not entirely clear. But, at the very least, I would imagine that BART bosses will think about the consequences a bit more next time.

There's been a lot of coverage over BART's bizarre decision to shut down mobile phone service in one of its stations to hinder some potential protestors. With the FCC investigating, we've heard a number of folks say that there's no First Amendment violation here because there's "no right to mobile phone service." And while it's true that there's no right to mobile phone service, the law is pretty clear that there is a right to not have the government try to stifle a particular form of speech by shutting down infrastructure, solely targeted at that form of speech.

That is, the key issue isn't whether BART needed to keep its mobile phone service up all the time. If it goes down for maintenance, that's fine. But it can't turn it off if the decision is to try to block a particular type of speech. And that's exactly what BART clearly admitted to doing. Of course, it's not just the First Amendment at issue. There's also telecom law, and it appears BART violated that too.

Telecom lawyer/consumer rights advocate Harold Feld has a long and detailed explanation for why the shut down both violates telecom law and is also just a bad idea in general. It's pretty detailed, pointing out the specific citations in telecom law that were violated and a series of relevant caselaw decisions. There's a lot in there, but here's a key citation that reads like it could apply almost directly to the BART situation:

In Pike v. Southern Bell Tel. &Telegraph Co., 81 So.2d 254 (Ala. 1955), Mr. Connor, in his capacity as Commissioner of Public Safety for the City of Birmingham, ordered Southern Bell to remove the telephone of one Louis Pike, described by Mr. Connor as “a negro” of “questionable character” alleged by Mr. Connor to be a “well-known lottery operator in the city” and to be using his phone for unspecified “illegal purposes.” Reviewing cases from other jurisdictions (including People v. Brophy), the Alabama Supreme Court found that the right of every citizen to use a phone was guaranteed by federal law and could not be deprived without due process.  As the Court observed:

The present tendency and drift towards the Police State gives all free Americans pause.  The unconstitutional and extra-judicial enlargement of coercive governmental power is a frightening and cancerous growth on our body politic.  Once we assumed axiomatic that a citizen was presumed innocent until proved guilty.  The tendency of governments to shift the burden of proof to citizens to prove their innocence is indefensible and intolerable.

We are not able to glean from the bare conclusions set up in the letter of the Commissioner, whether it is claimed that the “illegal” use of the telephone was by the appellant, her husband, or a total stranger.  From aught that was alleged in the plea, except for the conclusion of the Commissioner, no “illegal” use of any type was made of this telephone by any one.

The notice alleged to have been received by the Telephone Company was couched in the terms of a direct order from the Commissioner of Public Safety.  What is the source of Mr. Connor’s authority to issue such an order?  We know of none.  And we hold that none exists.

If we took a contrary view, it would naturally flow and follow that the telephone company would be justified in acting on the notice of any over-zealous law enforcement official who, without evidence, and on mere suspicion, is impressed with the bad character or occupation of a particular telephone subscriber. The letter from Commissioner Connor set up in the plea is no defense.  It is the Telephone Company’s burden to show that the use being made of the telephone did, in fact, justify its removal.

These depredations of a subscriber’s legal right to telephone service constitute a denial of due process guaranteed by the Constitution of 1901, art. 1, § 6.  The gratuitous and arbitrary action of a police official is no justification for an abridgment of this right.  To hold that the Telephone Company is justified in discontinuing service by “order” of a police official would require judicial recognition of a police power which does not exist.  The bald assertion of an executive officer, be he the Attorney General of the United States or a constable of some remote beat, cannot be accepted as a substitute for proof in the judicial process.  No presumption arises as to the sufficiency of evidence based on a law enforcement officer’s conclusions.

Similarly, the BART's possession of “intelligence” that individuals may use their mobile phones to coordinate illegal activity does not confer “police power that does not exist.” BART must still go to the California agency with actual jurisdiction, the CPUC, and obtain a legal order authorizing the shut down of cellular service.