Fast Company

BART Toed A Blurry Legal Line In Blocking Cell Service To Thwart A Demonstration

Last week, BART blocked mobile phone services for several hours to disperse a demonstration they claimed was going to turn violent. Was it legal? The FCC is now asking. And free speech experts say it's uncharted territory that must be explored as mobile and digital communications technologies emerge.

On Thursday, August 11, Bay Area Rapid Transit (BART) officials shut down mobile phone service along the public transit network's tracks under murky circumstances in order to prevent a demonstration from taking place that day. The demonstration was called to protest the shooting death of a homeless and mentally ill man named Charles Blair Hill by BART police on July 3. Hill, 45, was allegedly drunk and wielding a knife inside the Civic Center station.

BART officials activated cell phone service throughout their underground tracks last year for "public safety" reasons, which could seem ironic now. The authority's decision to block wireless signals along much of their network appears to have been the first time in the United States that any agency disrupted mobile communications in order to prevent possible civil unrest. At the time this post was written, it was still unclear whether the public transportation system had obtained--or even formally seeked--permission from the mobile phone providers whose services they disrupted. For many observers, the shutdown had disturbing echos of the propensity of foreign dictators to disrupt mobile phone communications; the same week, massive riots were taking place in Great Britain that undoubtedly influenced BART's thinking.

Shortly after the shutdown, which lasted for several hours, BART produced an awkward video justifying their shutdown of mobile communication services.

The unruly mob BART feared would descend onto the Civic Center tracks never appeared, and BART's actions came under fire from liberals, Bay Area commuters, and BART employees. The FCC has announced an investigation.

In a prepared statement, BART officials asserted that "A civil disturbance during commute times at busy downtown San Francisco stations could lead to platform overcrowding and unsafe conditions for BART customers, employees, and demonstrators. BART temporarily interrupted service at select BART stations as one of many tactics to ensure the safety of everyone on the platform." BART also noted that mobile phone service was not impacted outside of stations or tracks.

But the Electronic Frontier Foundation (EFF)'s Rebecca Jeschke tells Fast Company that, "It's a First Amendment problem when a government agency takes it upon itself to prevent people from being able to speak. This was a broad prior restraint on the communications of BART riders. It didn't just affect demonstrators--it affected everyone."

An investigative project conducted by the EFF's Austin, Texas, chapter discovered that BART's Board of Directors held a closed-door session on a possible mobile phone shutdown several days before it happened.

But whether the decision was legal is yet undetermined. Mobile phones are a young technology, smartphones are even younger and the corpus of legal precedents to figure out what is happening here simply doesn't exist. In Egypt or Syria, autocratic rulers are able to disrupt communications infrastructure at will without legal interference. But in countries such as the United States, which practice a robustly enforced system of checks and balances, the situation is different.

John Villasenor, a non-resident fellow at the Brookings Institution and an electrical engineering professor at UCLA, tells Fast Company that determining the legality of BART's decision is extremely difficult. In his words, "I’m not aware of any previous instance where this has occurred [in the United States], but the technologies that even make this issue possible have just emerged in recent years. We’re witnessing a historic and fundamental shift in how people can communicate. For the first time ever, it has become easy for anyone to instantaneously and simultaneously communicate with large, specifically selected subgroups of people within an even larger crowd. This is changing the dynamics of crowds, including in both peaceful and non-peaceful demonstrations, in profound ways that we’re only just beginning to understand."

Opinions have been split on the issue. Right-leaning legal pundit Eugene Volokh claims BART was in the clear because service disruptions only occurred on their own property, while the often left-leaning ACLU and the EFF (along with San Francisco Mayor Ed Lee) have publicly questioned the legality of BART's decision.

Another expert on telecommunications law, Jerry Kang of the UCLA Law School, seconded the fact that BART's decision took the transit provider into a legal gray area. According to Kang, "It is illegal for persons to 'willfully or maliciously interfere with or cause interference to any radio communications.' [...] But there is a difference between affirmatively jamming a signal sent by a carrier and deciding not to provide, repeat, or boost that carrier’s signal. Mobile providers have been granted licenses to use spectrum frequencies by the FCC. In addition to the spectrum, they need to put up antennas. Usually, they contract with private parties to site these antennas. Due to basic physics, the above-ground signals don’t penetrate underground. Therefore, the mobile providers must have created some agreement with BART to site some antennas (repeaters) underground."

Kang notes that BART's agreements and contracts with mobile providers will also influence the legality of the case. At time of writing, it is also unclear whether BART had agreements with individual providers that would allow them to shut off service in extreme circumstances. Messages seeking comment left by Fast Company for BART's community relations department were not returned.

[Top Image: Flickr user Florianplag]

For more stories like this, follow @fastcompany on Twitter. Email Neal Ungerleider, the author of this article, here or find him on Twitter and Google+.

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