by Stephen Rhodes
UPDATE: The FCC is now soliciting comments on this event. Please read up, then submit your comment.
On August 11th, San Francisco’s Bay Area Rapid Transit Authority shut off cell service at multiple underground stations to disrupt a planned protest. This tactic has become common in totalitarian regimes like Syria, Tunisia, Iran & Egypt, but until last Thursday it has never been used in the United States. BART’s police Lieut. Andy Alkire called their action a “great tool to utilize.” Swift condemnation from groups like ‘No Justice, No BART‘, the ACLU and the EFF rained down.
There is no precedent for communication disruption by a government transportation authority in U.S. history, but it’s certain that laws were broken. Specifically, the California & U.S. Constitution, and the Communications Act of 1934 which is enforced by the FCC. For a good overview of the issues and recent news (especially regarding the protest on Monday Aug 15th which shut down all downtown BART stations), there’s an excellent overview at SFAppeal.
During an interview on CNN with Brooke Baldwin, Linton Johnson (Chief of Communications for BART) referred to cell service as an “amenity” and returned time and time again to an invented “Constitutional right to safety” or the right to get from “point A to point B”, both of which do not exist:
“They made us choose between people’s ability to use their mobile phones. An amenity that we provide–and our customer’s constitutional right to be able to get from point a to point b which is what we’re in business for…. [People made us] take the very tool that we put in place … the mobile phone as a safety tool.. to turn it around and use it against our customers to try to violate their constitutional right to safety.”
What BART specifically did:
Communications shut down: James Allison, Deputy Chief of Communications (aka Spokesman), told CNET that “BART staff or contractors shut down power to the nodes and alerted the cell carriers,” … “one of many tactics to ensure the safety of everyone on the platform.”
Tweaking the first Amendment: BART has also released a statement that effectively limits what you can say & do within the turnstiles of the system:
“No person shall conduct or participate in assemblies or demonstrations or engage in other expressive activities in the paid areas of BART stations, including BART cars and trains and BART station platforms.” via Bart.gov
The statement by BART defines where ‘Free Speech’ is and isn’t protected:
BART accommodates expressive activities that are constitutionally protected by the First Amendment to the United States Constitution and the Liberty of Speech Clause of the California Constitution (expressive activity), and has made available certain areas of its property for expressive activity.
This brings up an interesting issue: The access to realtime free speech. BART’s very time-focused disruption of communication effectively censored the realtime medium of speech, a medium that BART passengers have come to expect access to. In court cases where public safety conflicts with freedom of speech, if “imminent danger” is threatened by First Amendment activities, only then can right be violated. See ”In re Hoffman [67 Cal. 2d 845]” where a disruption in a public-owned train station occurred. The case has nothing to say regarding restricting communication, only the physical location where free speech activities (which may disrupt train service) can occur. As of Aug 19th, BART requires a permit (Rules PDF) for free speech on BART property.
Since BART preemptively restricted (and restricts) First Amendment rights, we’re in a different world here, folks.
Also see “BART’s Protest Position Does Not Withstand Legal Scrutiny” by Jay Leiderman:
“BART, via Linton Johnson has accused the lawful protestors of actions that were imminently going to be lawless. Yet he fails to provide any support for this position. Most saliently, the facts of the BART protest do not come close to those raised in Brandenburg. Would he argue that the KKK, guns in hand, can advocate marching on Washington to take back their country for the white man is permissible, but standing on a platform in a Guy Fawkes mask with a protest sign is seditious and certain to create “imminent lawless action?”
Access to Emergency services: FCC best practices for wireless carriers states that users should have access to 911 and emergency calls. It is conceivable that BART would be held liable if they tampered with a carriers mandate to provide reliable 911 service. Note that BART did have on hand emergency personnel and dedicated ambulances according to a CNN interview.
As reported in the Christian Science Monitor, this has never happened before:
This may be the first time a government agency in the United States has ever deliberately disrupted cellphone service to defang planned protests, criminologist Casey Jordan told CNN. “I haven’t been able to find another incident in which this has happened,” she told CNN’s Suzanne Malveaux Friday.
Iran used cell-phone-jamming technology to hobble protests in 2009, and Britain has considered doing so to thwart the social-media-driven riots that dogged London and other locales this week.
The Federal Communications Commission (FCC) forbids jamming cellphones (unless it is done by a Federal Agency), but BART’s move had a different legal context. Because the transit system contracts with five large telecommunications firms to provide underground and station service, BART did not use jamming technology, it simply turned off a service. From a practical standpoint, there is no difference.
What laws were violated?
The California Constitution
From the California Constitution, the declaration of rights, Article 1, Section 2, (a) reads:
Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.
In 2011, ‘writing’ and ‘publishing’ can be expanded to Facebook and Twitter postings. BART restrained this right.
The First Amendment
Next up, The U.S. Constitution’s First Amendment, which protects free speech, freedom of petition and the freedom of assembly. BART believes that ‘freedom areas’ can be created and enforced within public BART stations. Not the case. Some have wrongly argued that the U.S. Constitution also protects the right to travel or the right to safety. BART’s argument that their guarantee of safety or conveyance to passengers supersedes the first amendment right to free speech does not hold up.
Oops. One more: The Communications act of 1934, section 333
With regard to communication disruption, the FCC has begun an investigation into BART’s brilliant idea to unplug cell towers. There is clear language regarding the ‘Jamming’ of communications, and BART’s power down of cellular nodes falls under section 333:
“[n]o person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed or authorized by or under this Act or operated by the United States Government.”
If it actually was illegal to interfere with communications, then McDonalds could be held liable if they were to turn off their free WiFi. Intent is key here: BART turned off communications in a coordinated attempt to disrupt a lawful assembly. With regard to filing suit following a disruption to communications, the Act states that:
(v) Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis.
The BART board: Who knew?
As the Austin chapter of EFF has uncovered, a meeting agenda containing the discussion item “THREAT TO PUBLIC SERVICES OR FACILITIES” was sent out on August 5th for an August 11th meeting. A closed session on 9am of the 11th (the morning of the disruption) was likely when the board discussed — if they discussed it at all — any potential cellular service shutdown. BART board member Lynette Sweet said during an interview that in fact it was never discussed in a formal meeting:
“The BART board was alerted just a few hours before they planned to do this without having it as an agenda item. We really couldn’t talk much about it.”
So why was the board not involved? Or if it was, why did they let it happen? Did the Communications Director think it was a trivial decision?
What I expect to happen
Since both the ACLU and the EFF have determined that they will not file suit against BART, my only hope is that the FCC slaps a ‘don’t do that again’ judgement on BART to make clear that this won’t stand. Perhaps then (and I’m not holding my breath..) BART will fire some bad decision makers, retrain their trigger happy police force, and straighten up before they are hacked to pieces by Anonymous.
TakeApart.com has a good takeaway: “Possible Alternative Policy to Phone Jamming: BART might best serve itself, and the community, by instituting a policy against shooting people to death.” Stay tuned.
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