Quiet the Cell, Hush the Bus

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Published

February 25, 2005
OnTheCommons.org

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I love tools. I stop at hardware stores sometimes just to look at them. The utter economy of a screwdriver and hammer feels almost cleansing in a society built upon diseconomy and waste.

Technology is another matter. Technology is what happens when the tool becomes the task, rather than just a means of doing the task. Usually it doesn’t so much solve problems as shift them around and create new ones. Cars, televisions, cell phones — we all could make a list.

Did I say cell phones? They are a prime example, but also the cause of a technology that I am rooting for these days. It is cell phone jammers, which, according to the New York Post,“are selling like hotcakes on the streets of New York.” The headline on the story was a tabloid classic: “Shut the Cell Up.”

It’s not just individuals who are buying the jammers. Restaurants and schools are buying them too (Profs are getting fed up with students who tap away on phones during class.) Catholic priests use them to shut up the ringers during mass.

But you won’t actually find these devices on the streets, or at Radio Shack for that matter. Some people buy them over the internet. Others go into spy shops where clerks fetch them from back rooms, a little the way you once had to buy condoms in Massachusetts. The reason is that jammers technically are illegal.Get caught using one and it could mean an $11,000 fine and time in jail.

In a rare display of good sense, the Federal Communications Commission has determined it has bigger fish to fry, and no one has been prosecuted to date. Still, the very existence of the law is instructive, especially the premise that underlies it. The government contends that since telecom corporations have paid money for the spectrum over which the cell phone chatter passes, to silence the phones is to rob these corporations of something they own. They own the air, so they get to fill the air which as much yak as they want. More precisely, their customers do.

But there’s air, and then there’s air. Telecom Inc might “own” the cell phone spectrum, but what about the ambient air that Ms. Bigmouth violates when she screams into her cell phone?What about the spillover from Telecom’s air into ours? In the reasoning of the FCC our air doesn’t count. Ms. Bigmouth can emit all the noise into it she wants. But we can’t send an electronic signal into that same air and fill it with quiet.Noise is important; silence isn’t.The boisterous yammering of one person takes priority over the desire of fifty or a hundred others for a little peace.

This premise goes to the core of the fatuous belief in technology and progress. There was a time when space seemed vast and the challenge was to conquer it and fill it. Now, as space fills up, that dynamic is starting to hit the wall. Sooner or later cell phone jammers are going to force the issue, in this small realm at least. The government is going to have to articulate exactly why noise is more important than quiet, and why one person should be able to ruin the common air for everyone else.

That’s a debate we can look forward to. It gets especially interesting because of the security implications. Terrorists are igniting bombs with cell phone ringers. A year or so ago, just before President Bush visited London, there was much talk in the British press that the government there might block cell phone signals along the President’s route for just that reason. It didn’t happen, but the threat remains — and grows, if our own government is to be believed. In the 1950s we got a National Defense Highway System. Now maybe it’s time for National Defense Quiet System.

Hush the Bus is the inspired name for an organization in Hong Kong that has been fighting the televisions that blare ads at bus riders in that city. Among other things, this dogged crew has purchased stock in the company — Roadshow Holdings — responsible for the intrusion, and raises the issue at shareholder meetings. It’s an uphill battle in that hypercommercial city, but they soldier on.

It looks as though we are going to need some branches in the U.S. pretty soon The Metropolitan Atlanta Rapid Transit Authority has announced — proudly, which tells you something — that it will be the first subway system in North America to be equipped with televisions.

Oh joy. They wouldn’t want kids to sit and read now would they? What kind of a city would encourage that, instead of watching TV?

The stations will be tuned to Atlanta’s ABC affiliate, which means a captive audience for the advertisers that sign on. The audio portion will be available via FM radios. Signs will instruct people to listen only through headphones, as though that makes a lot of difference. I used to ride Washington’s Metro system every day, and I’m here to tell you that headphones these days are so powerful that you often can hear them half way down the car. People might as well have a couple of loud speakers strapped onto their head.

So everyone is going to have to listen to these ads whether they want to or not. That may make the advertisers happy. But it raises again the question, who gets priority: the people who want to fill the air with noise, or those who want some quiet? Whose air is it anyway?

This question is not new. It came before the U.S. Supreme Court 50 years ago, when the bus system in Washington DC decided to blare radio ads at its riders. [Public Utilities Commission v. Pollak, 343 U.S. 451 (1952)] The lower court had agreed, by a 3-0 decision, that to so corral the attention of riders was to deprive them of liberty without due process of law. The Supreme Court reversed however. (Justice Felix Frankfurter, in an act of ethical scruple that seems both miraculous today and also a bit excessive, disqualified himself because as a rider of the DC buses he was too outraged at the invasive ads to sit in dispassionate legal judgement.)

The Supreme Court’s decision moved a law professor at Columbia by the name of Charles L. Black Jr. to write a law review article unusual for its eloquence and passion. “I tremble for the sanity of a society that talks, on the level of abstract principle, of the precious integrity of the individual mind,” Black wrote, “and all the while, on the level of concrete fact, forces the individual mind to spend a good part of every day under bombardment with whatever some crowd of promoters want to throw at it.”

Does this suggest a new direction for “takings” litigation — that is, the taking of our time and attention? Is there a lawyer in the house?

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