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If tones contain data and data is speech, does that not protect their use for entertainment purposes on free speech grounds? This seems analogous to the free s

If tones contain data and data is speech, does that not protect their use for entertainment purposes on free speech grounds? This seems analogous to the free speech issues over the RSA encryption/decryption algorithms during the 90s.

haxton 7y ago
No. For the same reason why you cannot go into a crowded movie theatre and yell "FIRE!"
- tantalor 7y ago
  The EAS case here is more analagous to the original "War of the Worlds" radio broadcast.
- malandrew 7y ago
  How does broadcasting this tone create a clear and present danger? It's merely a call to attention and then you need to listen to and process the subsequent message. The tone itself does not create a clear and present danger, but the subsequent message may. There's no notion of panic or stampede with this tone, it only communicates "hey, listen up, there's something that may be important for you to know about". I'm sure that many of those living in America on HN have been subject to EAS messages that were not of serious concern since it's used pretty liberally for even minor concerns like a tropical storm. It's also worth know about the Supreme Court case (Schenck v United States) that lead to Oliver Wendell Holmes, Jr's opinion that lead to this legal test, since the issue at hand in that case would most likely be protected by the 1st amendment today. Furthermore, Holmes eventually reversed his position in Abrams v United States. https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_the... No reasonable person would look at any of the examples where a fine has been issued over use of the EAS signal and conclude that any of those artistic statements were even close to creating a clear and present danger.
  - perl4ever 7y ago
    "How does broadcasting this tone create a clear and present danger? It's merely a call to attention and then you need to listen to and process the subsequent message." False alarms can create a danger because they condition people not to take an alarm seriously. Even if people are pretty conscientious about treating alarms as if they are real, very few of them will continue doing so against peer pressure.
    - malandrew 7y ago
      > because they condition people not to take an alarm seriously. That'd be a stronger argument if the EAS and its predecessor the EBS were not broadcast with sufficient regularity that people approach such messages with some degree of skepticism already. I was looking over the Wikipedia article for the EAS and I found one illegal broadcast interesting: > In February 2011, the morning show of WIZM-FM in La Crosse, Wisconsin played a recording of the aforementioned "dead bodies" EAS hack. It inadvertently triggered the EAS on WKBT-DT, relaying both the message, as well as the hosts' laughter Not even being able to discuss and listen to related primary material of a recent newsworthy event definitely gets into first amendment violation territory. https://en.wikipedia.org/wiki/Emergency_Alert_System#Tone_usage_outside_of_alerts https://en.wikipedia.org/wiki/Emergency_Alert_System#Tone_us...
  - smkellat 7y ago
    Since when is a tropical storm a minor concern? That’s one of the stranger assertions to wake up to on a Saturday morning. The National Weather Service maintains a nice list of EAS event codes here: https://www.nws.noaa.gov/nwr/info/eventcodes.html https://www.nws.noaa.gov/nwr/info/eventcodes.html 47 CFR 11.31 defines the AFSK signal used for transmitting EAS alerts. The encoder settings are unique enough to not be accidentally used in any regular setting. For emergency planning purposes especially in lessons learned post-Katrina, avoiding alert fatigue was deemed by internal & external evaluators as being critical. The cited code section is here: https://www.law.cornell.edu/cfr/text/47/11.31 https://www.law.cornell.edu/cfr/text/47/11.31 As for being artistic, sometimes there are boundaries. This is one that shouldn’t be crossed.
- BalinKing 7y ago
  It’s worth noting that the Supreme Court case that decided this, Schenck vs United States, was primarily about outlawing anti-draft speech. (In a sense, this actually strengthens the parent comment’s argument; speech which might cause harm, like a fake EAS or anti-draft speech, really should be protected by the 1st Amendment.)
MrLeap 7y ago
We've written asterisks after most <li>'s in the bill of rights. Words that have the potential to incite imminent lawless action can't rely on free speech as a shield. https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_the... There's also illegal numbers https://en.wikipedia.org/wiki/Illegal_number https://en.wikipedia.org/wiki/Illegal_number Some math used to be considered a munition and was heavily controlled for export. Some restrictions remain, with advocates for more. https://en.wikipedia.org/wiki/Export_of_cryptography_from_the_United_States https://en.wikipedia.org/wiki/Export_of_cryptography_from_th... There's laws that rely on courts to ad hoc determine the artistic validity of work, and thus its restrictions and even legality. https://en.wikipedia.org/wiki/United_States_obscenity_law https://en.wikipedia.org/wiki/United_States_obscenity_law Courts can require you keep secrets or not talk about certain topics. https://en.wikipedia.org/wiki/Gag_order https://en.wikipedia.org/wiki/Gag_order You can receive a letter that requires that you surrender information on your customers, but forbids you from telling them. https://en.wikipedia.org/wiki/National_security_letter https://en.wikipedia.org/wiki/National_security_letter I know not all of those are relevant to this. Just enumerating free speech's cheese holes I can remember to support why I don't think upholding these fines would be hard.
- BalinKing 7y ago
  Just because courts have weakened the First Amendment as the American justice system understands it, does not mean they should have done so (or that their actions were constitutional). Independent of the specific cases mentioned above, citing governmental restrictions on speech as justification for a weaker 1st Amendment feels circular IMHO (since the amendment exists to restrain the gov. in the first place).
- wahern 7y ago
  > We've written asterisks after most <li>'s in the bill of rights. These really aren't "exceptions" to the Free Speech Clause as "freedom of speech" was always a legal term of art. Opinions of precisely what it means vary, even at the time the Constitution was drafted, but it certainly was never equivalent to the mere physical act of communicating. Indeed, speech implies something about the substance and motivation of what's being communicated, which is exactly why performances and many other forms of activity--including abstention--are considered "speech". More generally, the exercise of any right is always implicitly limited by its effect on others' rights. Here we have a perfect example: the right of the public, through their government, to effectively communicate emergency information in a timely matter would be infringed if anybody could imitate the tones. There's a natural conflict that must be resolved here, and for fairly obvious reasons (even if you don't necessarily agree), it's resolved in favor of the public.
deleted 7y ago
[deleted]
dlgeek 7y ago
The issue isn't "making a creative work which includes the tones" (which is where the 1A argument would come in). Nothing's prohibiting that that I'm aware of. Many, many examples of this on YouTube. The issue would be "an FCC licensed-station broadcasting the tones to the public on the public airwaves in violation of the rules governing their license". The rule is a technical restriction that's a condition of the broadcast license. Very different.

haxton 7y ago

No. For the same reason why you cannot go into a crowded movie theatre and yell "FIRE!"

tantalor 7y ago
The EAS case here is more analagous to the original "War of the Worlds" radio broadcast.
malandrew 7y ago
How does broadcasting this tone create a clear and present danger? It's merely a call to attention and then you need to listen to and process the subsequent message. The tone itself does not create a clear and present danger, but the subsequent message may. There's no notion of panic or stampede with this tone, it only communicates "hey, listen up, there's something that may be important for you to know about". I'm sure that many of those living in America on HN have been subject to EAS messages that were not of serious concern since it's used pretty liberally for even minor concerns like a tropical storm. It's also worth know about the Supreme Court case (Schenck v United States) that lead to Oliver Wendell Holmes, Jr's opinion that lead to this legal test, since the issue at hand in that case would most likely be protected by the 1st amendment today. Furthermore, Holmes eventually reversed his position in Abrams v United States. https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_the... No reasonable person would look at any of the examples where a fine has been issued over use of the EAS signal and conclude that any of those artistic statements were even close to creating a clear and present danger.
- perl4ever 7y ago
  "How does broadcasting this tone create a clear and present danger? It's merely a call to attention and then you need to listen to and process the subsequent message." False alarms can create a danger because they condition people not to take an alarm seriously. Even if people are pretty conscientious about treating alarms as if they are real, very few of them will continue doing so against peer pressure.
  - malandrew 7y ago
    > because they condition people not to take an alarm seriously. That'd be a stronger argument if the EAS and its predecessor the EBS were not broadcast with sufficient regularity that people approach such messages with some degree of skepticism already. I was looking over the Wikipedia article for the EAS and I found one illegal broadcast interesting: > In February 2011, the morning show of WIZM-FM in La Crosse, Wisconsin played a recording of the aforementioned "dead bodies" EAS hack. It inadvertently triggered the EAS on WKBT-DT, relaying both the message, as well as the hosts' laughter Not even being able to discuss and listen to related primary material of a recent newsworthy event definitely gets into first amendment violation territory. https://en.wikipedia.org/wiki/Emergency_Alert_System#Tone_usage_outside_of_alerts https://en.wikipedia.org/wiki/Emergency_Alert_System#Tone_us...
- smkellat 7y ago
  Since when is a tropical storm a minor concern? That’s one of the stranger assertions to wake up to on a Saturday morning. The National Weather Service maintains a nice list of EAS event codes here: https://www.nws.noaa.gov/nwr/info/eventcodes.html https://www.nws.noaa.gov/nwr/info/eventcodes.html 47 CFR 11.31 defines the AFSK signal used for transmitting EAS alerts. The encoder settings are unique enough to not be accidentally used in any regular setting. For emergency planning purposes especially in lessons learned post-Katrina, avoiding alert fatigue was deemed by internal & external evaluators as being critical. The cited code section is here: https://www.law.cornell.edu/cfr/text/47/11.31 https://www.law.cornell.edu/cfr/text/47/11.31 As for being artistic, sometimes there are boundaries. This is one that shouldn’t be crossed.
BalinKing 7y ago
It’s worth noting that the Supreme Court case that decided this, Schenck vs United States, was primarily about outlawing anti-draft speech. (In a sense, this actually strengthens the parent comment’s argument; speech which might cause harm, like a fake EAS or anti-draft speech, really should be protected by the 1st Amendment.)

MrLeap 7y ago

We've written asterisks after most <li>'s in the bill of rights. Words that have the potential to incite imminent lawless action can't rely on free speech as a shield. https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_the... There's also illegal numbers https://en.wikipedia.org/wiki/Illegal_number https://en.wikipedia.org/wiki/Illegal_number Some math used to be considered a munition and was heavily controlled for export. Some restrictions remain, with advocates for more. https://en.wikipedia.org/wiki/Export_of_cryptography_from_the_United_States https://en.wikipedia.org/wiki/Export_of_cryptography_from_th... There's laws that rely on courts to ad hoc determine the artistic validity of work, and thus its restrictions and even legality. https://en.wikipedia.org/wiki/United_States_obscenity_law https://en.wikipedia.org/wiki/United_States_obscenity_law Courts can require you keep secrets or not talk about certain topics. https://en.wikipedia.org/wiki/Gag_order https://en.wikipedia.org/wiki/Gag_order You can receive a letter that requires that you surrender information on your customers, but forbids you from telling them. https://en.wikipedia.org/wiki/National_security_letter https://en.wikipedia.org/wiki/National_security_letter I know not all of those are relevant to this. Just enumerating free speech's cheese holes I can remember to support why I don't think upholding these fines would be hard.

BalinKing 7y ago
Just because courts have weakened the First Amendment as the American justice system understands it, does not mean they should have done so (or that their actions were constitutional). Independent of the specific cases mentioned above, citing governmental restrictions on speech as justification for a weaker 1st Amendment feels circular IMHO (since the amendment exists to restrain the gov. in the first place).
wahern 7y ago
> We've written asterisks after most <li>'s in the bill of rights. These really aren't "exceptions" to the Free Speech Clause as "freedom of speech" was always a legal term of art. Opinions of precisely what it means vary, even at the time the Constitution was drafted, but it certainly was never equivalent to the mere physical act of communicating. Indeed, speech implies something about the substance and motivation of what's being communicated, which is exactly why performances and many other forms of activity--including abstention--are considered "speech". More generally, the exercise of any right is always implicitly limited by its effect on others' rights. Here we have a perfect example: the right of the public, through their government, to effectively communicate emergency information in a timely matter would be infringed if anybody could imitate the tones. There's a natural conflict that must be resolved here, and for fairly obvious reasons (even if you don't necessarily agree), it's resolved in favor of the public.

deleted 7y ago

[deleted]

dlgeek 7y ago

The issue isn't "making a creative work which includes the tones" (which is where the 1A argument would come in). Nothing's prohibiting that that I'm aware of. Many, many examples of this on YouTube. The issue would be "an FCC licensed-station broadcasting the tones to the public on the public airwaves in violation of the rules governing their license". The rule is a technical restriction that's a condition of the broadcast license. Very different.