Massachusetts Bay Transportation Authority v. Anderson et al …

Massachusetts Bay Transportation Authority v. Anderson et al                                                         Doc. 16




                                            UNITED STATES DISTRICT COURT
                                             DISTRICT OF MASSACHUSETTS


             MASSACHUSETTS BAY
             TRANSPORTATION AUTHORITY

                                     Plaintiff
             v.
                                                                        Civil Action No. 08-11364-GAO
             ZACK ANDERSON, RJ RYAN,
             ALESSANDRO CHIESA, and the
             MASSACHUSETTS INSTITUTE OF
             TECHNOLOGY

                                     Defendants


                     PLAINTIFF'S MOTION TO MODIFY TERMS BUT NOT DURATION OF
                                  TEMPORARY RESTRAINING ORDER

                                                         Introduction

                     The plaintiff, Massachusetts Bay Transportation Authority ("MBTA"), hereby moves to

             modify the terms, but not the duration, of the Temporary Restraining Order issued by this Court

             on Saturday, August 9, 2008. As grounds, the MBTA states as follows:

                     1.      On Saturday, August 9, 2008, after a hearing, this Court entered a Temporary

             Restraining Order in this matter (the "TRO"). A copy of the TRO is included in the Exhibits in

             Support of Plaintiff's Motion To Modify Terms But Not Duration Of Temporary Restraining

             Order (the "8/11 Exhibits").

                     2.      In connection with issuing the TRO, the Court issued Findings and Rulings orally

             from the bench. These Findings and Rulings have not yet been transcribed, and the transcript of

             the hearing itself has not yet been transcribed. Plaintiff's counsel requested an expedited

             transcript of these items early this morning.




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                                                                                                           Dockets.Justia.com
       3.      In the context of the Court's Findings and Rulings, the TRO language is clear and

unequivocal, and fairly balances the parties' interests.

       4.      To date, attorneys from the Electronic Frontier Foundation (the "EFF") have been

acting as counsel to the individual defendants in this matter, Zack Anderson, RJ Ryan, and

Alessandro Chiesa (the "MIT Undergrads").

       5.      In statements to the press, the MIT Undergrads' EFF attorneys have claimed that

the TRO is improper, unclear, and illegally restrains the MIT Undergrads' rights under the First

Amendment, among other claims.

       6.      The MBTA has emphasized that it seeks relief to uphold industry standard

concepts of "responsible disclosure," and does not seek to impose impermissible restraints on the

MIT Undergrads. See, e.g., Complaint ¶ 57; Declaration of Joseph Kelley ¶28; Memorandum in

Support of Motion for Temporary Restraining Order at iv-vi.

       7.      To further demonstrate its desire to act in accordance with "responsible

disclosure," the MBTA has offered in writing to immediately mediate this dispute, in order to

seek a method for balancing all parties' interests in a tailored manner. See Declaration Of Ieuan

G. Mahony In Support Of Plaintiff's Motion To Modify Terms But Not Duration Of Temporary

Restraining Order ("Mahony 8/11 Decl.") at ¶¶5, 7-8; 8/11 Exhibits 3, 5.

       8.      The EFF has declined to respond to the MBTA's request, and instead demands

that the TRO be lifted in full. Mahony 8/11 Decl. at ¶6; 8/11 Exhibit 4.

       9.      To correct any public or intra-party misperception concerning the TRO and the

MBTA's goals in this matter, the MBTA requests this Court to modify the TRO as follows:

       10.     The current TRO reads as follows, in operative part:

               [I]t is hereby ORDERED as follows: ... [t]hat the MIT Undergrads are
               hereby enjoined and restrained, in accordance with Fed. R. Civ. P.



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               65(b)(2), from providing program, information, software code, or
               command that would assist another in any material way to circumvent or
               otherwise attach the security of the Fare Media System.

       11.     The MBTA requests that this language be modified by the inclusion of the term

"non-public" as indicated by the bolded-underlined language that follows:

               [I]t is hereby ORDERED as follows: ... [t]hat the MIT Undergrads are
               hereby enjoined and restrained, in accordance with Fed. R. Civ. P.
               65(b)(2), from providing non-public program, information, software code,
               or command that would assist another in any material way to circumvent
               or otherwise attach the security of the Fare Media System.

       12.     The MBTA believes that this language is warranted, indeed required by the text of

the Courts Findings and Rulings. Moreover, the MBTA has no desire to prevent the MIT

Undergrads from discussing materials, code, information, or ideas that are in the public domain.

       13.     Instead, as the MBTA has made clear both in its court filings and in

communications with Defendants' counsel, the MBTA seeks as soon as it practicable to

understand what sensitive information ­ if any ­ the MIT Undergrads may (or may not) have

learned through their conduct as evidenced in part (a) by the Presentation attached as Exhibit 7 to

the Supplemental Declaration of Ieuan G. Mahony; (b) by the Report attached as Exhibit 1 to the

Declaration of Scott Henderson; and (c) by the Initial and Revised Announcements.

       14.     The MBTA believes that the most efficient, and balanced method for sharing this

information is via non-binding, confidential mediation. The MBTA, accordingly, has committed

to mediate this matter in writing.

       15.     In arguing "first amendment rights" and "prior restraint," the MIT Undergrads'

EFF counsel ignores the MBTA's attempts to uncover whether this is in fact a "prank", or

whether the MIT Undergrads are in fact able to compromise the Fare Media System in the

manner they publicly claim.




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       16.     Therefore, to demonstrate that the MBTA is in fact only concerned with the core

issue of immediate concern in this case ­ the security and integrity of its Fare Media System --

the MBTA affirmatively moves to limit to further eliminate claimed First Amendment concerns,

and in the hope of obtaining some level of constructive discourse with the EFF's clients without

Court involvement.

                                           Conclusion

       THEREFORE, the plaintiff respectfully requests that this Court modify the Temporary

Restraining Order as stated above.



                                             MASSACHUSETTS BAY TRANSPORTATION
                                             AUTHORITY

                                             By its attorneys,


                                             /s/ Ieuan G. Mahony___________
                                             Ieuan G. Mahony (BBO #552349)
                                             Maximillian J. Bodoin (BBO # 667240)
                                             HOLLAND & KNIGHT LLP
                                             10 St. James Avenue
                                             Boston, MA 02116
                                             (617) 523-2700


                                             /s/ Thomas F.S. Darling III_____________
                                             Thomas F.S. Darling III (BBO #558848)
                                             MASSACHUSETTS BAY TRANSPORTATION
                                             AUTHORITY
                                             State Transportation Building
                                             7th Floor
                                             10 Park Plaza
                                             Boston, MA 02116
                                             (617) 222-3174




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                     CERTIFICATE PURSUANT TO LOCAL RULE 7.1

         The undersigned counsel for the Massachusetts Bay Transportation Authority hereby

certifies that he has sought to confer with defendants' counsel in a good faith effort to resolve or

narrow any issues related to this motion. MBTA Counsel has conferred in detail with counsel

for MIT on the present motion. Given press statements by EFF counsel for the MIT Undergrads,

the position of EFF counsel's refusal to respond concerning the MBTA's proposals to discuss the

TRO and other relevant matters via mediation, I perceived there to be little time available to

conduct such conferences, and little likelihood of reasonable results at this point from EFF

counsel. Further details concerning these points are provided in the Declaration of Ieuan G.

Mahony in Support of Plaintiff's Motion To Modify Terms But Not Duration Of Temporary

Restraining Order.

                                              /s/ Ieuan G. Mahony___________



Dated: August 11, 2008
       Boston, Massachusetts


# 5530567_v1




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