On October 27th, board members of Bay Area Rapid Transit (BART) held a public meeting to discuss the draft of their new cell phone shutdown policy. EFF attended the meeting and presented our recommendations, which would ensure that the final policy complied with the First Amendment and mandated transparency. Encouragingly, the members pledged to adopt many of EFF’s proposed changes. However, the final draft of the policy will not be released for two weeks, so the board must still follow through on its promises.
The board's draft policy is a response to the outcry over the infamous event in August when BART police shut down cell phone service during a political protest, brazenly violating the participants’ free speech rights. EFF’s biggest priority was making sure BART explicitly barred the shutdown of cell phones during future protests or any other First Amendment protected activity. BART’s new general manager Grace Crunican—the person responsible for implementing BART policy—stated just that: the new policy would not authorize a cell phone shutdown under similar circumstances, nor would she ever intervene to authorize such a shutdown. The new policy means future protests simply “won’t be handled through disrupting the cell phone service,” she said.
A shutdown should be used “in extraordinary circumstances related to terrorism…but that is an extreme use,” she continued. “Short of that, I don’t see us causing any cell phone interruption at all.”
EFF also recommended BART should publicly post a written record of any discussion of a possible shutdown, to foster transparency in the decision making process. President of BART’s board, Bob Franklin, agreed. “That is a good suggestion and the Citizen Review Board has also made that suggestion.” Franklin added he would draft language incorporating the recommendation into the final draft of the policy.
Addressing EFF recommendations that BART request a court hearing before any shutdown, and that the draft policy spell out specifically which state and federal regulations apply, BART general counsel Matthew Burrows said the FCC must weigh in on what law applies.
EFF, along with Public Knowledge, the ACLU, and other civil liberties groups, currently have a petition pending before the FCC to clarify that the earlier shutdown violated current U.S. telecom laws. Burrows stated he has asked the FCC to rule on the issue as soon as possible as well. He added—with some frustration—the issue has “been pending before [the FCC] for quite a while.” After the FCC rules, Burrows said he could cite the applicable federal regulations in the policy and know who has jurisdiction for judicial oversight. “If the law was clear on this subject," Burrows explained, "we could go to court and ask for a court order.”
Other board members questioned the practicality of requesting a court hearing in a true emergency, such as a hostage situation where imminence and serious harm are likely. As written, however, the draft policy could encompass less immediate situations without a court order. The draft policy must remove such ambiguities.
The BART board concluded the meeting by saying a new draft will be posted publicly and then voted on either November 17th or the first week of December.
While the public board meeting was a notable development in the quest to prevent BART from shutting down cell service again, this fight is far from over. EFF calls on the FCC to immediately review of our petition so that the final policy will address all current ambiguities and force them to describe all of their procedures and safeguards with greater specificity. We also implore Franklin and the rest of the board to follow through with their promises and model their final policy after yesterday’s public rhetoric.
”BART got a lot of international attention because of this,” Franklin said during the hearing. “BART got the scrutiny, but also the opportunity to lead the way.” EFF agrees and hopes BART’s board rises to the occasion and drafts a cell phone policy that complies with the First Amendment and respects citizen’s rights to political expression.