Back in August, the Bay Area Rapid Transit (BART) garnered national attention when it shut down cell phone service to limit a political protest over the shooting death of a homeless man by BART police. BART released a statement the following day stating that “a civil disturbance during commute times at busy downtown San Francisco stations could lead to platform overcrowding and unsafe conditions.” It stated that the service was purposefully interrupted after reports from protest organizers that they would use mobile phones to coordinate their protest and communicate about BART police.
BART justified its actions by stating that cell phone service was available outside of every station, and courtesy phones were available for customers requiring assistance. Despite protests to the contrary, BART insisted that it was still accommodating demonstrations under the First Amendment, and that its actions fell in line with previous restrictions of demonstrators to certain areas of the stations.
The resulting public outcry was so great, with comparisons made to similar actions in the UK, Egypt, and, perhaps most ominously, Iran, that BART officials have since backed down and recently released their proposed new cell phone policy. The new policy recognizes the importance of mobile service to passengers, and states that “[it] should be interrupted only in the most extraordinary circumstances that threaten the safety of District passengers, employees, and other members of the public,” and that BART will impose temporary service interruptions when there is strong evidence of imminent unlawful activity. In a troubling move, however, BART defines extraordinary circumstances to include instances in which there are attempts to “substantially disrupt public transit services,” which sounds eerily similar to its justification for its earlier actions. After pressure from the Electronic Frontier Foundation (EFF), the general manager of BART explicitly stated that the new policy would not authorize a cell phone shutdown for scenarios similar to the August protest.
The BART protest may have marked the first time in the United States where government shut off a communication system to stop a perceived threat. However, events like these emphasize the increased importance of determining whether the government has the right to limit access to mobile service in public stations, and whether limiting such access violates free speech. It’s important to note that no entity, whether a coffee shop, transit system, or hotel, is required to offer wireless access. But once such access is granted, does it become a right? Groups like the ACLU and the EFF argue that wireless services are a necessary part of free speech, and the FCC is now evaluating BART’s actions to see whether it violated federal telecommunications rules. Even if the FCC finds that BART did not, the California Supreme Court previously held that a city cannot prohibit nondisruptive political activity inside of a railroad station. With wireless access becoming commonplace in public places, expect to see this issue pop up again in the future.