On Monday of last week, California passed a bill that requires all smartphones to “come equipped with a feature that allows users to remotely wipe their personal data and make the devices inoperable.”1 The intent behind this feature is to reduce cell phone theft. While many believe that it is implied that this feature is accessible only to the individual owner of the phone, the Electronic Frontier Foundation (EFF) points out that “the bill is not explicit about who can activate such a switch.”2 The letter continues to say that, though the bill limits the circumstances in which this could happen, law enforcement officials would have the ability to activate the switch. As the EFF puts it, this bill essentially “mandates the technical ability to disable every phone sold in California.”3
In the wake of Ferguson, many civil liberties advocates are worried that such a feature could be used to silence protesters. As The Hill points out, because the bill “contains a dangerous carve-out that could give law enforcement the power to shut down cellphones during emergency situations,” there is the possibility it could be use to surpress public demonstrations like the ones happening right now in Ferguson, MO.
To ask the question you’re all thinking, how does this work under the First Amendment?
[quote author=”United States Constitution, First Amendment”]Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.[/quote]
Now, first to address one thing that you may be thinking, while the text of the First Amendment explicitly says “Congress shall make no law…,” the U.S. Supreme Court “has interpreted, the due process clause of the Fourteenth Amendment as protecting the rights in the First Amendment from interference by state governments.”4 So that means the protection applies to state laws as well.
So how does this California law fit in? If used to break up protests, does it violate the First Amendment? I am not a Constitutional expert, but my gut reaction is yes. Generally speaking, we have a right to protest and to speak our minds. Anything that would prevent us from doing so would, in my mind, violate the First Amendment. As pointed out above, this particular feature can be used by law enforcement during “emergency situations.” Ferguson is an exception to this, but protests, though they may make people uncomfortable, do not usually qualify as emergency situations.
In these rare cases like Ferguson, though, when protests escalate to violence, where does this law and the First Amendment fit in? The text of the amendment explicitly states that there is a “right of the people peaceably to assemble.” As soon as the assembly is no longer peaceful, do our First Amendment protections go away? We know that there are some limitations on our First Amendment rights. For example, under the “clear and present danger” doctrine, you can’t yell “Fire!” in a crowded movie theater where there is no fire.
[quote author=”Justice Oliver Holmes Jr., Schenck v. United States“]The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic … . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger.[/quote]
Furthermore, where is the line? How do we distinguish when a protest is no longer peaceful? And what about those who are peaceful? Can law enforcement officers just target those inciting or causing violence or must they do a blanket activation of the kill switch and shut down the whole protest?
This bill presents many interesting questions—ones that are particularly ripe for discussion as we look at the protests in Ferguson and the violence that is occurring. Would a kill switch be necessary or even effective in this scenario or would this be a violation of First Amendment rights?
1 Tummarello, K. (2014). Ferguson fuels “kill switch” debate. The Hill. Retrieved from http://thehill.com/policy/technology/215301-ferguson-fuels-kill-switch-debate
2 Fakhoury, H., Kamdar, A. & Tien, L. (2014, June 16). EFF Letter Opposing SB 962 [Letter to The Honorable Susan Bonilla] Retrieved from https://www.eff.org/document/eff-letter-opposing-sb-962
3 Fakhoury, et al.
4 Cornell University Law School Legal Information Institute. (n.d.) The First Amendment: An Overview. Retrieved from http://www.law.cornell.edu/wex/first_amendment
Featured image via http://www.nydailynews.com/news/national/outcry-identity-killed-michael-brown-continues-article-1.1901745 (SCOTT OLSON/GETTY IMAGES)
Block Quotes Sources
1 U.S. Const. amend. I
2 Schenck v. United States, 249 U.S. 47 (1919).