While I’m on a constitutional rant, I bring your attention to a developing case of a federal district court judge issuing a temporary restraining order to prevent three MIT students from giving a presentation at Black Hat, the awesomest security (hacker) conference, because it contained information on how to circumvent the payment system of the Boston transportation system.

Let me rephrase. A judge issued an order to stomp on free speech.

“But they are hackers that intended to defraud the MBTA!” you say?

The prevailing legal theory is “prior restraint.” Basically, you can’t very well restrict someone from saying something. It is more encouraged to allow the act of speech to occur and deal with the potentially negative consequences later. You can’t arbitrarily restrict acts of speech you don’t like.

I point out yet another article by Eugene Volokh, called “Temporary Restraining Order Against Crime-Facilitating Speech About Security Vulnerabilities”

The students’ presentation is available, and is rather enjoyable to flip through. Nothing groundbreaking, but in my estimation, very cool. And, in any case, it is certainly worth protecting.

The Electronic Frontier Foundation (EFF) has taken up their case and plans to appeal the judge’s ruling. With hope this will minimally reprimand a judge for bad decisions against society and maximally set a positive precedent to follow: don’t screw with our First Amendment.

Donate to the EFF.

Peter Swire, Professor of Law at Ohio State, wrote an excellent piece of testimony for the Senate Committee on the Judiciary Subcommittee on the Constitution, Civil Rights & Property rights entitled “Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel” (pdf). Basically, he makes an analogy between unrestricted laptop searches at the borders to when the US government tried to be a third party in all cryptographic communications. End result: it failed. Miserably.

He says, “Laptop searches will not succeed at a technical level at preventing data from entering or leaving the United States.” What this really means is: laptop searches at borders cannot possibly scale nor reliably produce any useful information for fighting crime.

At the end of the day, laptop searches and any unreasonable searches and seizures of any persons, houses, papers, and effects must be ruled illegal. Oh wait, we already have a constitutional amendment that guarantees just that:

People who actually know what they’re talking about will then say, “Border Search Exception! Border Search Exception! Border Search Exception!”

Yes, but even the border search exception requires “reasonable suspicion” to qualify. From “District Court Holds that Border Searches Require Reasonable Suspicion” by Eugene Volokh, a noted professor of law at UCLA (who also achieved a BS in Math and Computer Science at the age of 15, three years after he started working as a programmer:

Swire also has a shorter article related to the testimony.