Comment by tlb
14 years ago
It is not OK for the government to cut off citizen communications in times of civil unrest or any other time. BART, which has its own police force, must be held to constitutional standards. While they can prohibit assembly within their stations, disabling communications infrastructure violates people's basic rights.
in this case, legally it is a tricky issue and BART is probably and unfortunately in the clear on this.
BART cut power to the wireless sites in these/tunnels tations - they didn't ask the wireless providers to terminate their services. I suspect that since the wireless sites lease space and consume power from BART operated facilities, BART is well within their rights to terminate power and other services based on existing contractual agreements.
However, that doesn't make what BART did "right." It is downright disgusting and I hope that the wireless providers mount up and put some serious pressure on BART in response. Certainly the providers are paying serious money to BART to lease space to provide service to riders, and the optics of the loss of that will hurt BART far more than it will hurt the wireless providers. At the end of the day, loss of wireless lease would really be a punch in the gut to BART, not to mention the public safety issues.
I don't know that the technical details factor into this -- BART admitted that their intent was to prevent speech and to interfere with communications, therefore it's possible they ran afoul of the First Amendment and/or the FCC. I don't know that we'll find the answer unless someone takes it to trial.
I'm not condoning what BART did, I think it was wrong.
But, if you decided to use HN to organize a response to an issue and HN deleted your posts, that doesn't make HN's actions a First Amendment issue. The First Amendment does not apply for private institutions that you choose to participate on.
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As is often pointed out around here, there's legal, and then there's right.
They don't have battery backups?
Pressure, or perhaps just UPS/battery installations...
I would imagine there is power backup already in place to keep the trains moving under the bay in case of a power failure.
"BART, which has its own police force, must be held to constitutional standards."
This sounds nice, but do you actually know what those Constitutional standards are?
First, as you seem to recognize, the area in which cell phone service was disrupted is what is considered a "nonpublic forum." The government has significant latitude to restrict speech in nonpublic forums, especially when the restriction is related to the function of that forum. Here, BART shut down cell phone service because it was informed that a group of "protesters", which had caused disruption to BART service in the past, was going to use cell phones to organize another disruption. According to reports, cell phones were to be used to communicate the locations of BART police officers to maximize the mob's ability to disrupt service.
Second, not all speech is due protection under the First Amendment. There is protected speech, and unprotected speech.Speech designed to incite violence or create a breach of the peace is not protected. There is substantial case law on this. Here, based on tweets like "We are going to show BART (@SFBART) how to prevent a riot #OpBART" and the past actions of this particular group of "protesters", it is clear that BART had a compelling reason to temporarily shut down cell phone service in its stations.
Finally, in this case, BART did not prevent this group of "protesters" from expressing ideas. It simply restricted, temporarily, a particular mode of delivery.
What about those who weren't planning to use their cell phones to incite a riot? Again, there is more latitude to restrict speech in nonpublic forums, and any restrictions here were content-neutral, narrowly drawn in terms of time, place and manner, and were for a compelling purpose (protecting public safety).
Bottom line: this is only a Constitutional issue if you have no understanding of the Constitution and First Amendment case law.
The best part is the idea was originally suggested by BART's public relations department. They are of course in full backpedal mode on that statement.
This is why government should not be in the cell phone (or tower, or repeater) business. Just as they should not be involved in the newspaper, news reporting or any other business not related to actual governing. Giving any government the power to shut down communication is a nasty, slippery slope. Once it's OK to quash communication in the subway, then it's OK to quash it just outside the subway; then for one block around the subway; then for 10 blocks around the subway ad infinitum.
The big problem is that the governing authorities assumed that everyone around BART that day was there for nefarious cause and treated everyone as a suspect, thereby shutting down potential criminal activity, yet depriving law-abiding citizens the ability to communicate freely. If the governing authorities were interested in preserving security, then they should use the means granted to them by the citizens; namely, police officers.
What basic right is that?
Some states seem to have laws preventing this sort of thing since it would interfere with 911 calls. http://www.cga.ct.gov/2002/rpt/2002-R-0891.htm
Not sure about California.
Most of the laws (as summarized on the page) seem to address only interfering with a person making a call ("it is a crime for batterers to prevent their victims from making a call for help") or interrupting the service (prank calls?). If BART is the one providing the service (or at least the communications medium), it'd be harder to say they are interfering. They simply stopped offering the service. Also, it's pretty rare for an agency like BART to be charged with crimes.
The worst that's likely to happen is someone sues them, but good luck proving damages.
Didn't you hear? Amendment 28, which establishes cell phone service as a basic human right.
I'm pretty sure being able to use your cell phone to dial 911 is a basic human right in America.
You can pick up any cellphone that has a battery in it, regardless of contract status, and call 911. That is of course unless you ride BART during a protest, a time when you are much more likely to be in need of emergency services.
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What's funny about all this is that cutting off communication stops people from calling in emergency, thus preventing life saving services from arriving at the scene in a timely manner. "shutdown the cellphone service for the safety of everyone". Sounds reminiscent of President Hosni Mubarak's plan of stopping the protest by shutting down cellphone and internet.
We need to hurry up and give our government the ability to have an Internet off switch, you know, for the safety of everyone.
If I buy a cellphone jammer and run it on my property near a government building because there is a protest going on... for the safety of everyone. I would be immediately arrested upon discovery of what I was doing.
The tricky part here is, BART shut off the communications, and told everyone else after the fact.
Didn't Obama recently sign a bill giving him and any future president power to shut off nationwide internet during times of "crisis'?
No.