August 13, 2012 | By Parker Higgins

BART's Cell Phone Shutdown, One Year Later

In just a few hours, protestors are set to march to the headquarters of Bay Area Rapid Transit (BART) to mark the anniversary of last year's cell service shutdown. A year ago this week, responding to planned protests throughout the BART system, the transit authority cut off cell phone service in four stations in downtown San Francisco. We were among many to draw the connection between BART and Hosni Mubarak, former president of Egypt, who was in the midst of disabling communication networks to quell protests around the same time:

One thing is clear, whether it’s BART or the cell phone carriers that were responsible for the shut-off, cutting off cell phone service in response to a planned protest is a shameful attack on free speech. BART officials are showing themselves to be of a mind with the former president of Egypt, Hosni Mubarak, who ordered the shutdown of cell phone service in Tahrir Square in response to peaceful, democratic protests earlier this year.
...
Freedom of expression is a fundamental human right. Censorship is not okay in Tahrir Square or Trafalgar Square, and it’s still not okay in Powell Street Station.

It's worth looking back at the past year to see how the situation has developed. In the days and weeks after the cell service shutdown, BART invoked public safety as its justification for the cutoff. We were quick to point out that disabling communication networks actually runs counter to the interest of public safety. That's one reason we joined Public Knowledge and other public interest groups in asking the Federal Communications Commission (FCC) to clarify that BART's actions were illegal under the Communications Act. In announcing our official comments to the FCC (pdf), we wrote:

It’s important to note that shutdowns of wireless service negatively affect both the public’s First Amendment rights and public safety. ... Safety and free speech are not mutually exclusive; in contrast, they are intertwined, and by shutting down cell phone service in August, BART threatened both.

BART acknowledged the problem with their actions, and in October of last year promised to introduce a new policy restricting the circumstances under which it could manipulate communications networks. We offered suggestions to their draft policy, and BART board members pledged to implement many of them.

The final cell service interruption policy (pdf), implemented in December may be an improvement, but it is still problematic. To its credit, this policy would likely have prevented the August shutdowns. It limits the circumstances under which cell service may be interrupted to situations where there is "strong evidence of imminent unlawful activity" and "the interruption will substantially reduce the likelihood of such unlawful activity." It also requires that the interruption is "essential" for the protection of safety, and that it is "narrowly tailored."

That said, BART management could abuse some vague language to curtail legitimate speech without real justification. The document provides "illustrative examples," but acknowledges that other circumstances might qualify. And while BART's new general manager Grace Crunican has made clear that she would not authorize a shutdown in a situation like last August's protest, that promise does little to guarantee, for example, that her successor won't.

There have also been some efforts at a legislative solution. In California, state Senator Alex Padilla has introduced a bill that would pre-empt local policies and require a court order to create cell service interruptions. SB 1160 has now been approved by the state Assembly, and we'll be monitoring its progress as it develops.

For those protesting today, our Cell Phone Guide for Protestors may prove useful. Even a year later, BART's actions still serve as a potent reminder of communication networks and the danger to free speech their cutoff can pose.


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