Senators Seek to Censor Mobile App Stores, Disregarding Public Safety and the Constitution

by on March 25, 2011 · 605 comments

In the latest example of big government run amok, several politicians think they ought to be in charge of which applications you should be able to install on your smartphone.

On March 22, four U.S. Senators sent a letter to Apple, Google, and Research in Motion urging the companies to disable access to mobile device applications that enable users to locate DUI checkpoints in real time. Unsurprisingly, in their zeal to score political points, the Senators—Harry Reid, Chuck Schumer, Frank Lautenberg, and Tom Udall—got it dead wrong.

Had the Senators done some basic fact-checking before firing off their missive, they would have realized that the apps they targeted actually enhance the effectiveness of DUI checkpoints while reducing their intrusiveness. And had the Senators glanced at the Constitution – you know, that document they swore an oath to support and defend – they would have seen that sobriety checkpoint apps are almost certainly protected by the First Amendment.

While Apple has stayed mum on the issue so far, Research in Motion quickly yanked the apps in question. This is understandable; perhaps RIM doesn’t wish to incur the wrath of powerful politicians who are notorious for making a public spectacle of going after companies that have the temerity to stand up for what is right.

Google has refused to pull the DUI checkpoint finder apps from the Android app store, reports Digital Trends. Google’s steadfastness on this matter reflects well on its stated commitment to free expression and openness. Not that Google’s track record is perfect on this front – it’s made mistakes from time to time – but it’s certainly a cut above several of its competitors when it comes to defending Internet freedom.

Advance Publicity & DUI Checkpoints

Trying to keep the locations of DUI checkpoints secret is bad public policy. Contrary to the Senators’ assertion that “applications that alert users to DUI checkpoints” are “harmful to public safety,” there is zero evidence that publicizing sobriety checkpoints contributes to drunk driving accidents.

If anything, advance publicity actually saves lives. DUI checkpoints aren’t primarily about catching drunk drivers, but about deterring drunk driving in the first place. When drivers know that police have set up checkpoints nearby, they’re likely to think twice about getting behind the wheel. Instead, they might hail a cab or catch a ride from a sober friend.

The California Supreme Court recognized in Ingersoll v. Palmer that DUI checkpoints are designed to deter drunk driving:

The stated goals of several law enforcement agencies explicitly point to deterrence as a primary objective of the checkpoint program. The Burlingame manual described the objectives of its program, noting the historical use of roving patrols as the principal law enforcement response to the drunk driving problem… Two major goals of the checkpoint as stated in the manual were to increase public awareness of the seriousness of the problem and to increase the perceived risk of apprehension.

The Ingersoll court further stated with regard to the checkpoints that, “advance publicity is important to the maintenance of a constitutionally permissible sobriety checkpoint. Publicity both reduces the intrusiveness of the stop and increases the deterrent effect of the roadblock.”

California is not alone in focusing on the deterrent effect of DUI checkpoints. In 1990, shortly after the U.S. Supreme Court upheld the constitutionality of certain kinds of DUI checkpoints in Michigan Department of State Police v. Sitz, the National Highway Traffic Safety Administration (NHTSA) published a document (PDF) laying out guidelines for police in conducting sobriety checkpoints. NHTSA’s model sobriety checkpoint guidelines include the following section:


1. For the purpose of public information and education, this agency will announce to the media that checkpoints will be conducted.

2. This agency will encourage media interest in the sobriety checkpoint program to enhance public perception of aggressive enforcement, to heighten the deterrent effect and to assure protection of constitutional rights.

Indeed, police departments routinely publicize information about DUI checkpoints in local newspapers and other media outlets. Many police officers think such publicity is beneficial to law enforcement. Take Indiana State Police Sgt. Dave Burstein, who brushed off the Senators’ concerns about DUI checkpoint apps, saying to local news affiliate WXIN-TV, “Let everybody know they’re there because the whole idea is to get voluntary compliance.”

Regulation Through Intimidation

The Senators’ letter isn’t just uninformed and irresponsible, it’s also arrogant – a prime example of regulation through intimidation. When politicians want to dictate behavior but know they cannot lawfully legislate or regulate it, a widely favored tactic is to demonize the target by sending a threatening letter accompanied by a vitriolic press release. When that doesn’t get the job done, politicians hold congressional hearings to publicly rake the alleged wrongdoers over the coals. This reprehensible strategy has long been used to suppress constitutionally protected speech in ways that, if legislated, would almost certainly be overturned by courts on First Amendment grounds. As former U.S. Senator Paul Simon warned in 2003:

I have no problem with holding hearings and putting on pressure. But the problem with holding hearings and putting on pressure is that most of the members have no sensitivity on the First Amendment…The only oath we take says that we promise to support and defend the Constitution of the United States against all enemies, foreign and domestic. The domestic enemies of the Constitution are often on the floor of the House and the Senate.

In a free society, it is unacceptable for a handful of Senators to attempt to dictate mobile app store decisions without a floor vote or any judicial oversight. Lawmakers’ function is to make laws, not exploit their bully pulpit to try to coerce private businesses into doing their bidding. If voters let these politicians get away with going after DUI checkpoint apps, which politically unpopular apps will be next? A ban on apps that locate abortion clinics? A ban on apps that locate handgun dealers? It’s a scary slippery slope, as ACT’s Morgan Reed reminds us.

If Reid, Schumer, Lautenberg, and Udall want to examine a serious threat to public safety, they should look in the mirror. Meanwhile, they should leave mobile app stores alone. The Washington Times nailed it in a recent editorial:

Real drunk drivers deserve severe punishment, but the best way to catch them is to respect the Fourth Amendment. Instead of having cops stand around behind barricades interrogating soccer moms, have them patrol the streets looking for evidence of impaired driving. It works. In the meantime, high-tech companies ought to email these senators a free Constitution app for their smart phones.


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