SALT LAKE CITY – Utah's Transit Authority (UTA) has a terrific new idea: They do something wrong ... and you get to pay for it!
Seems the UTA has installed "free" WiFi on its FrontRunner commuter trains and express buses, although the service is only supposed to be available to those over 18 — and when passengers sign onto the system, they agree, among other terms and conditions, to accept the UTA's filtering system which supposedly restricts access to "offensive sites": Those involved with online gambling, gaming .. and porn. So one price of "free" is content restrictions.
But as the Deseret News recently pointed out, "[N]o filter is perfect, and people could access some sites that would be deemed inappropriate."
The question, however, is whose fault that would be? After all, the State of Utah is the entity making the WiFi available to its residents (or anybody else riding its transit system), and while those using the access agree to accept the UTA's chosen filtering system, what happens if a user should come across a gambling, gaming or porn site that isn't blocked by the system, which "isn't perfect"? Just that person's good luck, right?
Um ... no. The Transit Authority's Board of Trustees, on May 27, adopted an ordinance making "inappropriate use of Internet services" an offense punishable by a $300 fine for the first offense, and $500 fines thereafter.
But the fines aren't for "illegal use" (which Utah, not having a state lottery, but turning a blind eye to bingo parlors and a couple of poker rooms, considers gambling and gaming to be); not "indecent use" (where adult content viewing might impact public decency laws); but "inappropriate use."
Of course, those fines only apply if the passenger is using the UTA's WiFi system. If they're accessing the "inappropriate content" while on the transit system through their own wireless provider, or are viewing porn they've downloaded before even boarding the bus or train, the new ordinance doesn't apply. Those passengers get popped under the State's disorderly conduct laws – but the fine for that is just $100.
Better still, enforcement of the ordinances is in the hands of transit police officers, who according to UTA spokesman Gerry Carpenter "would have to make a judgment call prior to issuing a citation" – just the sort of discretion put in the hands of civil servants that courts like to strike down. That is, if the mere fact that the fine is greater for someone using UTA's system as opposed to his/her own wireless carrier weren't discriminatory enough.
There's also an appeals process built into the new ordinance. If a passenger is cited under the UTA ordinance (but not under the disorderly conduct law), he/she may write a letter of appeal within 30 days to the Authority, which letter must be reviewed by a hearing officer together with whatever evidence the issuing transit officer may have to offer. The hearing officer must then hold a "review" which the passenger has the right to attend (but not to give further evidence at), and the officer's decision is then sent to the passenger by mail or email.
Very tidy ... and very unconstitutional.
David Reymann, a Salt Lake City-based attorney, agrees.
"Some pornography is not considered legally obscene, and those types of pornographic Web sites are lawful," Reymann told the Deseret News. "There's a First Amendment right to publish that... They have to clearly specify [what 'inappropriate' means] or end up being overly broad; they'll end up prohibiting breast-feeding sites or legitimate art sites. Courts have been struggling for decades to define what is obscene."
The legal issues are pressing, because beginning July 1, Salt Lake City International Airport will be offering free WiFi to passengers in all of its terminals and concourses and even the car rental area. While access is currently being supplied by Concourse Communications, their contract with the airport is about to expire – and besides, they were charging $7.95 per hour for the service, which passengers weren't happy about.
But like the UTA, airport officials are deciding whether to install filtering software – and what their policy will be for passengers who "access inappropriate content" is anybody's guess at this point. At least Concourse's Boingo WiFi program didn't have content filters – and no one's yet tried to gauge a majority of passengers' reactions to any of this.