BART shuts subway cell service to foil San Fran protest; sparks legal debate

The Bay Area Rapid Transit turned off cellular service in its subway late Thursday in an attempt to keep protestors from using phones to organize its latest action against the San Francisco area agency. That move sparked more protests comparing the forced outage to the same tactics used by Middle East dictators to quell protests.

"The hacking collective Anonymous responded in typical form over the weekend by defacing the agency’s website, and stealing and releasing the private account information of some 2,000 San Francisco–area transit riders," according to a Wired report Monday.

Hmmmm.... that doesn't seem like a very good way to gain the sympathies and support of the riding public.

For its part, BART says it owns and operates the cellular transmission infrastructure, and thus has a right to shut it down to protect its passengers. And one Chicago First Amendment lawyer opined that the law may be on BART's side:

“You have the right to speak,” Damon Dunn, a First Amendment lawyer in Chicago, said in a telephone interview with Wired. “I don’t think you have the right to leverage your speech through technology that you don’t necessarily control yourself.”

What do you think? What if the CTA did that here under similar circumstances? The Associated Press photos here certainly show general chaos and unsafe conditions on the platform during last week's protests.

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  • Setting the issue of free speech aside for a moment, they just didn't shut off access to twitter and facebook, etc, they actually removed power from the cell sites. That meant no voice or data. From a public safety point of view, that means no 911 calls, no text messages, no emergency calls at all for people riding on the BART, no communications at all.

    Good luck if you have a family member in trouble or need while you're riding. Good luck if you want to report a crime or need medical assistance.

    As far as there first amendment, you either have it or you don't. You can't pick and choose who you want to let speak. It was best said “I disapprove of what you say, but I will defend to the death your right to say it.”

    Everyday a little portion of our rights are eroded by people trying to protect us.

    BART did the wrong thing for what they somehow thought was a good reason, but it's not.

    Protests are a part of life. I'd like nothing more that to have every one of the "critical mass" idiots who take over the roads on fridays and act like they own the roads and don't have follow the same rules as everyone else, but as lame and distasteful as I find them, there's nothing I can do.

    BART caused more of a problem and opened up a whole can of worms that will end up causing them more headaches than leaving well enough alone.

  • In reply to KevinB:

    "Protests are a part of life. I'd like nothing more that to have every one of the "critical mass" idiots who take over the roads on fridays and act like they own the roads and don't have follow the same rules as everyone else, but as lame and distasteful as I find them, there's nothing I can do"

    But nobody's trapped in a tightly-enclosed space with exceedingly limited access (trains, subway stations) because of Critical Mass, or picketers outside the Thompson Center or in Daley Plaza. BART riders were trapped on trains during the protests in San Francisco because the protesters were blocking the doors and stopping trains from moving.

    Critical Mass is/are using the street by riding down it on bicycles. They are using a means of travel (the street) AS a means of travel (they are going from one place to another). They're doing so in an arguably obnoxious manner, but so do many motorists and pedestrians. Protesters blocking subway trains from moving aren't using the subway.

  • hmmmm....... the non-licensed-in-Illinois, law-school-graduate-legal-encyclopedia-editor hasn't weighed in?

  • Kevin, I see your point, and on the face of it I do agree with it. However, I am pretty sure that BART like CTA, local cellular companies wired their subway tunnels up for cellular use so passengers can use their cell phones. But it was done on BART's property, and as much as I do agree with you on the freedom of speech, it was not done outdoors, it was on their property.

  • I agree with this: "Everyday a little portion of our rights are eroded by people trying to protect us."

    But we don't have a right to cell phone service in the subway.

  • Maybe it just might be a smart tactic to protect passengers from rowdy would be demonstrators during a busy evening commute?

  • BART didn't shut down cell service during a new protest on Monday, but it did shut down all the entrances to four stations & allowed only people to get off & exit trains.

    It looks like the FCC will have the final word on this.

    FCC spokesperson Neil Grace said "Any time communications services are interrupted, we seek to assess the situation. We are continuing to collect information about BART's actions and will be taking steps to hear from stakeholders about the important issues those actions raised, including protecting public safety and ensuring the availability of communications networks."

    One big question that the FCC certainly musk ask BART, and ask for supporting records related to it, is if BART's lawyers were asked to investigate the legality of the cell phone service blocking idea before it was done. If not, it's almost certain the FCC will take some kind of action against BART, and simply because the absence of any pre-decision legal opinion is a sure sign that the idea was made and done in haste, without regard for the law, and with the kind of emotion that a well-managed organization should not display.

    One thing that's a sure clue BART knew it's actions were not legal after it was done last Thursday, is that turning off the cell phone network wasn't done on Monday, and in anticipation of the announced non-violent protest planned for Civic Center BART Station in San Francisco.
    Read more: http://www.sfgate.com/cgi-bin/blogs/abraham/detail?entry_id=95456#ixzz1VCumWZEz

  • I agree with other commenters: Nobody was stopped from talking. You can still open your mouth; you can still get a pencil and write on a piece of paper. The issue is ownership and rights with regard to communication technology, that is, who owns the phones, who owns the towers and lines in question. What's in your contract with your provider? What about here--does the CTA own the transmission lines that bring cell service underground? Or if not, did they reserve the right to shut them off?

    The First Amendment applies to action by government, not private arrangements. We ought to be wary of mixing the two, by letting government entities or government-protected monopolies "help" with these private arrangements, opening a back door for them to compromise our access to communications for reasons that put collective interests above those of individuals.

    Fine print is such a pesky thing. We love it when it lets us sneak something by someone, but not when we discover someone else buried a surprise inside.

  • I'm really we haven't heard from the carriers since I'm sure there are contractual issues with the service. If I was one of the ones who were inconvenienced by this capricious action, I'd be calling up my carrier and giving them holy hell for not going after BART.

    Also, there's the matter of emergency services. If anything happened to someone while the service was interrupted, I could see the BART attorney now "Well on the assumption that something MIGHT happen to cause us embarrassment, we turned everything off so that no one could have access, including emergency services. I could have seen something like shutting off data services and left voice intact, but actually removing the power seems overkill. Like the FCC said, "it's about public safety and ensuring availability of communications networks"

    I'd think that they would be crying foul on BART just so they don't get sued themselves. I hope the FCC cracks down hard.

    As I understand the CTA contract, the carriers put in their own equipment with the CTA providing power and the space. That's why those of us with Sprint have had such a long wait to get service in the red line tunnels.

    We'll see but like I said, I think BART open a can of worms that they should have just left alone.

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