Computers, Privacy & the Constitution

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TWikiGuestSecondPaper 4 - 27 Apr 2022 - Main.MylesAmbrose
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Presumption of innocence and pretrial media coverage


TWikiGuestSecondPaper 3 - 25 Apr 2022 - Main.MylesAmbrose
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Presumption of innocence and pretrial media coverage


TWikiGuestSecondPaper 2 - 16 Apr 2021 - Main.ClaireCaton
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BART and the Cellphone Kill Switch

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Presumption of innocence and pretrial media coverage

 
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Kill switches are in the news again.
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Introduction

 
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On April 27, the Department of Justice filed its response brief to EPIC’s petition for rehearing in Electronic Privacy Information Center v. United States of Homeland Security. The DOJ argues that The Department of Homeland Security’s Standard Operating Procedure 303 (“SOP 303”), which is a protocol for determining whether or not to shut down wireless networks “during critical emergencies,” is shielded from disclosure by FOIA Exemption 7(F) which protects “records or information compiled for law enforcement” where disclosure can reasonably be expected to endanger life or physical safety.
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All defendants in criminal cases are presumed to be innocent until proven guilty beyond a reasonable doubt. The presumption of innocence, simply stated, is “being innocent until proven guilty”. The Constitution does not mention this right by name. Instead, the general principle comes from English common law and has been confirmed in numerous court rulings, such as Coffin v. United States in 1895. In a recent case, Ford v. Peery,1 the court upheld that the presumption of innocence is “the undoubted law, axiomatic and elementary”.2 Adding that the presumption is “a basic component of a fair trial under our system of criminal justice.”3 and that its “enforcement lies at the foundation of the administration of our criminal law.”4
 
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While we await the results of that case, I thought it would be interesting to look back at the cellphone service shutdown implemented by a public transit system I rode everyday pre-law school.
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Pretrial publicity, as defined by the American Psychological Association, is media coverage of a case that occurs prior to the trial and which can lead prospective jurors to form opinions about the case before hearing evidence in court.5 Freedom of the press enjoys constitutional protection under the First Amendment to the United States Constitution and as such, journalists can freely report on ongoing criminal cases to inform the public.
 
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The growth of the Internet has created a powerful medium through which publicity can be disseminated. The right of a criminal defendant to be presumed innocent and the right of the press to publish information about the alleged criminal acts guaranteed by the First Amendment seem to come into conflict when pretrial publicity threatens to deprive the defendant of an impartial jury.
 
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The BART Shutdown

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I. Conflictual relation between presumption of innocence and freedom of the press

 
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On August 11, 2011, Bay Area Rapid Transit (BART) temporarily interrupted cellphone service at select stations to disable the communications of an organized protest and, thus, by their words, “ensure the safety of everyone on the platform.” The rationale behind the interruption in service was that organized protesters were planning to disrupt BART service which would ultimately “lead to platform overcrowding and unsafe conditions.”
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A. Presumption of innocence and impartial jury

 
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The shutdown caused an uproar, triggering accusations that that the shutdown “stifled free speech” and drawing comparisons to oppressive methods employed by “Middle East dictators.”
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Many criminal cases receive extensive media coverage, through social media, newspapers, television. Capital cases, in particular, often attract extensive, emotionally charged coverage. Courts are often placed in the position of estimating community bias against a defendant on the basis of media coverage. Prosecutors, as well as defendants and defense attorneys, can be influenced by the media. Juries who are supposed to be unbiased when deciding a case, might be affected by the news coverage they may have come across before trial. As media coverage becomes more extensive and accessible in today’s society in general, it is likely more difficult to find jurors who have not been exposed to relevant pretrial publicity.
 
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BART allegedly “acknowledged the problem with their actions” and promulgated a new cell service interruption policy in December 2011 that would recognize its commitment to First Amendment rights of expression. The new policy purports to allow temporary interruptions only when BART “determines that there is strong evidence of imminent unlawful activity that threatens the safety of District passengers, employees and other members of the public.”
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Defendants facing biased jurors might be presumed guilty instead of innocent. Yet, under the Sixth Amendment to the Constitution, every defendant is entitled to a trial by an impartial jury of his or her peers. Therefore, the need to preserve the presumption of innocence of defendants seems to require limiting publications relating to the possibility that an individual has committed a crime.
 
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“My Lord! Is that . . . legal?”

 
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As a layperson affected by the service shutdown, I briefly pondered the situation and assumed BART, as proprietor of the stations and the wireless network equipment within, could choose when to flip the switch.
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B. The sub judice rule

 
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But now can I come to the same conclusion?
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The sub judice rule regulates the publication of matters which are under consideration by the court. Matters are considered to be sub judice (Latin for 'under judgment') once legal proceedings become active. When the media either frontally or suggestively pronounces on the merits of a matter that is sub judice or builds public opinion on guilt or innocence in criminal trials, it enters the province of courts.
 
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After the incident, the FCC issued a request for public comment on the issue and BART’s contribution was inadequate in its elaboration of how the shutdown was consistent with the Constitution, among other things.
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The sub judice rule can either be seen as a reasonable restriction of the freedom of the press or be regarded as an unconstitutional impairment of the latter. In Sheppard v. Maxwell, the U.S. Supreme Court noted that: “there is nothing that proscribes the press from reporting events that transpire in the courtroom.”6 This is equivalent to saying that once a public hearing has been held, what has been said there could not be subject to prior restraint. This is however different from releasing information before any hearing is held.
 
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In a more elaborate comment, Public Knowledge, the Center for Democracy and Technology, and the Electronic Frontier Foundation discussed how the BART incident “underscore[d] the arbitrariness with which any actor with the power to initiate a wireless interruption might exercise that power.” First, it explained that the FCC has authority over wireless communications pursuant to the Communications Act and that its regulatory authority preempted state laws. Noting that states are granted police powers, the comment explains that regardless of any state laws, no local authority “may enact policies that permit activity that would be illegal under federal law.” Thus BART’s flipping of the switch constitutes an invasion into the allocation of authority on the matter.
 
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Setting aside the duel between local and federal actors over the allocation of authority on wireless service, we are left with the more pressing issue of whether the interruption of cellphone service at any level is legally sound. The Commenters naturally find that a discussion of the BART incident leads to addressing the looming shadow of SOP 303. Finding that SOP 303 lacked any judicial oversight whatsoever (based on summaries because the actual language is not available to the public), the Commenters conclude that the protocol is constitutionally deficient. “Government initiated interruptions of wireless service are a prior restraint on the lawful speech of every cell phone user in the affected area, and such interruptions will always violate the First Amendment unless they satisfy the highest possible procedural and substantive standards.”
 
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II. Counteracting prejudicial effects of pretrial publicity

 
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“I will make it legal.”

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A. Judicial remedies

 
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As the Supreme Court recognized over 80 years ago, it is indisputable that “the liberty of the press, and of speech, is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action.” Near v. Minnesota. But the Court was also quick to note that the liberty of free speech is “not an absolute right, and the State may punish its abuse.”
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Because doing so would violate the First Amendment right to freedom of the press, courts cannot realistically stop the press from publicizing information, truthful or not so truthful, about criminal trials, notwithstanding the biasing effect of pretrial publicity. Since pretrial publicity cannot be prevented, courts must find ways to minimize its impact on the fairness of the trial. The American Bar Association recognized the harm that prejudicial pretrial publicity can cause and has suggested a number of methods to counteract its effects, including voir dire (attorneys and/or judges would question prospective jurors to determine their fitness for jury duty), judicial instruction, continuance (the court may postpone trial proceedings in order to allow time for the initial publicity to dissipate), and change of venue. However, these approaches may not be effective in eliminating juror bias.
 
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With that tension in mind, we are then left with the rule that a prior restraint of expression “comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books v. Sullivan. The Government thus carries a heavy burden of justification for the restraint. Organization for a Better Austin v. Keefe.
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B. Jury instructions to ignore pretrial publicity

 
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Prior restraints on speech are commonly understood to come in two forms: (1) statutory in which the speaker is required to acquire a permit to engage in speech pursuant to a law or regulation; or (2) a judicial injunction. The BART shutdown, which by definition was a prior restraint on speech, seems to evade both categories. Similarly, SOP 303 appears to not meet the criteria for either. Both are unilateral in nature. As the Commenters note, under SOP 303 “there is no court in the loop at all, at any stage” in the process. By all accounts the BART shutdown was a decision made internally and the new policy issued by BART, although alleging full compliance with all applicable laws, merely states that any decision to implement a temporary shutdown requires authorization of the General Manager (who is not a judicial body, let alone a lawyer).
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Just like for other inadmissible evidence presented in court, the judge can modify jury instructions to specifically instruct jurors to ignore pretrial publicity. Those instructions would emphasize the importance of disregarding previously heard information about the case and relying solely on the information presented during the trial.
 
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If we go back to the idea that I had as a lay person that BART had the right to flip the switch as proprietor of the equipment, the Commenters dutifully address this as well, noting that BART “did not and cannot own” the airwaves over which cellular networks operate. Moreover, any consideration of the proprietorship of the equipment or the public forum doctrine is simply irrelevant when the actions are isolated from judicial scrutiny.
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Nevertheless, studies have demonstrated that despite the judge's instructions to disregard some information, jurors' verdicts were affected significantly by the information. Moreover, those instructions can sometimes produce a backfire effect, resulting in jurors being more likely to rely on inadmissible information after they have been specifically instructed to disregard it. Survey research has also indicated that individuals who live near an area where a crime was committed frequently develop a proprosecution bias,7 a bias likely due to greater pretrial exposure to prejudicial information. Similarly, individuals exposed to actual media reports of crime also develop a proprosecution orientation.8
 
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This discussion thus illustrates why the FOIA request in EPIC v. Homeland Security is potentially crucial to understanding what SOP 303 and incidents like the BART shutdown actually are in terms of First Amendment jurisprudence.
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Conclusion

 
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Even though there seems to be limitations with each of these potential solutions to reduce jury bias and guarantee the right to a fair trial, the publicity of justice, criminal in particular, is most likely necessary and must be relayed by the media. According to Jeremy Bentham, the act of justice itself cannot be conceived without publicity, which guarantees the quality of justice and its democratic legitimacy. In a democratic society, justice and the press should always be complementary. Their coexistence seems inevitable even though their relation can become conflictual.
 
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-- NealBurstyn - 08 May 2015
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1. Ford v. Peery, 976 F.3d 1032 (2020).
 
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2. Quoting Coffin v. United States,156 U.S. 432, 460, 15 S.Ct. 394, 39 L.Ed. 481 (1895).

3. Quoting Estelle v. Williams,425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976).

4. Quoting Coffin v. United States,156 U.S. at 453, 15 S.Ct. 394 (1895).

5. https://dictionary.apa.org/pretrial-publicity

6. Sheppard v. Maxwell, 384 U.S. 362-363 (1966)

7. https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1559-1816.1991.tb00524.x

8. https://psycnet.apa.org/record/2001-06603-005

 
 
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TWikiGuestSecondPaper 1 - 08 May 2015 - Main.NealBurstyn
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BART and the Cellphone Kill Switch

Kill switches are in the news again.

On April 27, the Department of Justice filed its response brief to EPIC’s petition for rehearing in Electronic Privacy Information Center v. United States of Homeland Security. The DOJ argues that The Department of Homeland Security’s Standard Operating Procedure 303 (“SOP 303”), which is a protocol for determining whether or not to shut down wireless networks “during critical emergencies,” is shielded from disclosure by FOIA Exemption 7(F) which protects “records or information compiled for law enforcement” where disclosure can reasonably be expected to endanger life or physical safety.

While we await the results of that case, I thought it would be interesting to look back at the cellphone service shutdown implemented by a public transit system I rode everyday pre-law school.

The BART Shutdown

On August 11, 2011, Bay Area Rapid Transit (BART) temporarily interrupted cellphone service at select stations to disable the communications of an organized protest and, thus, by their words, “ensure the safety of everyone on the platform.” The rationale behind the interruption in service was that organized protesters were planning to disrupt BART service which would ultimately “lead to platform overcrowding and unsafe conditions.”

The shutdown caused an uproar, triggering accusations that that the shutdown “stifled free speech” and drawing comparisons to oppressive methods employed by “Middle East dictators.”

BART allegedly “acknowledged the problem with their actions” and promulgated a new cell service interruption policy in December 2011 that would recognize its commitment to First Amendment rights of expression. The new policy purports to allow temporary interruptions only when BART “determines that there is strong evidence of imminent unlawful activity that threatens the safety of District passengers, employees and other members of the public.”

“My Lord! Is that . . . legal?”

As a layperson affected by the service shutdown, I briefly pondered the situation and assumed BART, as proprietor of the stations and the wireless network equipment within, could choose when to flip the switch.

But now can I come to the same conclusion?

After the incident, the FCC issued a request for public comment on the issue and BART’s contribution was inadequate in its elaboration of how the shutdown was consistent with the Constitution, among other things.

In a more elaborate comment, Public Knowledge, the Center for Democracy and Technology, and the Electronic Frontier Foundation discussed how the BART incident “underscore[d] the arbitrariness with which any actor with the power to initiate a wireless interruption might exercise that power.” First, it explained that the FCC has authority over wireless communications pursuant to the Communications Act and that its regulatory authority preempted state laws. Noting that states are granted police powers, the comment explains that regardless of any state laws, no local authority “may enact policies that permit activity that would be illegal under federal law.” Thus BART’s flipping of the switch constitutes an invasion into the allocation of authority on the matter.

Setting aside the duel between local and federal actors over the allocation of authority on wireless service, we are left with the more pressing issue of whether the interruption of cellphone service at any level is legally sound. The Commenters naturally find that a discussion of the BART incident leads to addressing the looming shadow of SOP 303. Finding that SOP 303 lacked any judicial oversight whatsoever (based on summaries because the actual language is not available to the public), the Commenters conclude that the protocol is constitutionally deficient. “Government initiated interruptions of wireless service are a prior restraint on the lawful speech of every cell phone user in the affected area, and such interruptions will always violate the First Amendment unless they satisfy the highest possible procedural and substantive standards.”

“I will make it legal.”

As the Supreme Court recognized over 80 years ago, it is indisputable that “the liberty of the press, and of speech, is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action.” Near v. Minnesota. But the Court was also quick to note that the liberty of free speech is “not an absolute right, and the State may punish its abuse.”

With that tension in mind, we are then left with the rule that a prior restraint of expression “comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books v. Sullivan. The Government thus carries a heavy burden of justification for the restraint. Organization for a Better Austin v. Keefe.

Prior restraints on speech are commonly understood to come in two forms: (1) statutory in which the speaker is required to acquire a permit to engage in speech pursuant to a law or regulation; or (2) a judicial injunction. The BART shutdown, which by definition was a prior restraint on speech, seems to evade both categories. Similarly, SOP 303 appears to not meet the criteria for either. Both are unilateral in nature. As the Commenters note, under SOP 303 “there is no court in the loop at all, at any stage” in the process. By all accounts the BART shutdown was a decision made internally and the new policy issued by BART, although alleging full compliance with all applicable laws, merely states that any decision to implement a temporary shutdown requires authorization of the General Manager (who is not a judicial body, let alone a lawyer).

If we go back to the idea that I had as a lay person that BART had the right to flip the switch as proprietor of the equipment, the Commenters dutifully address this as well, noting that BART “did not and cannot own” the airwaves over which cellular networks operate. Moreover, any consideration of the proprietorship of the equipment or the public forum doctrine is simply irrelevant when the actions are isolated from judicial scrutiny.

This discussion thus illustrates why the FOIA request in EPIC v. Homeland Security is potentially crucial to understanding what SOP 303 and incidents like the BART shutdown actually are in terms of First Amendment jurisprudence.

-- NealBurstyn - 08 May 2015

 
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Revision 4r4 - 27 Apr 2022 - 02:18:02 - MylesAmbrose
Revision 3r3 - 25 Apr 2022 - 02:11:12 - MylesAmbrose
Revision 2r2 - 16 Apr 2021 - 23:12:38 - ClaireCaton
Revision 1r1 - 08 May 2015 - 03:00:55 - NealBurstyn
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