BART’s unprecedented cell phone shut down is prompting the federal government to take a closer look at who has the right to block cell service.
The Federal Communications Commission said Monday that it’s investigating BART’s decision to shut down cell service to thwart a protest planned for last Thursday. In a written statement, FCC spokesman Neil Grace said, "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."
BART Board president Bob Franklin said Monday morning that he wants BART to open a dialogue with the FCC, which has already received complaints about BART.
“BART initiated this action, and it’s an unprecedented action in the US,” said Franklin. “When personal safety collides with first amendment rights that’s the national debate.”
Yaron Dori, president of the Federal Communications Bar Association and a partner at the law firm Covington & Burling, said that the FCC isn’t just making idle talk.
“As a policy matter, who can control the operation or shutdown of wireless networks that have become critical to everyone is going to be of substantial interest to regulators,” Dori said.
After the 2005 London subway bombings, the U.S. government and wireless providers created a voluntary protocol to determine when and if cell phone service should be shut off, an official with the Department of Homeland Security told The Bay Citizen.
A request to turn off cell service from a transit agency, for example, would initiate the protocol. The DHS would then work with the agency and the wireless providers to coordinate turning on and off the cell service, but the transit agency and the cell phone companies would be responsible for any decision to restrict cell phone service, the official said.
“Contrary to some media reports, the Department of Homeland Security (DHS) was not involved in Bay Area Rapid Transit’s (BART) decision to temporarily suspend public access to cell phone service at some subway stations last week,” Chris Ortman, a DHS spokesman, said.
A DHS official said it would not normally advise local governments to cut cell service unless there was a specific threat like a cell phone triggered bomb.
BART spokesman Linton Johnson said that the cell phone companies are like tenants and “part of their agreement was that during a safety sensitive or emergency situation we can turn off the service,” Johnson said.
Aboveground it would have been nearly impossible -- both legally and practically -- to do what BART did: shut down cell phone service with the flip of a switch to stop a potentially unruly protest.
In the early days of mobile phones, restaurants responded by installing jammers to block cell phone signals and stop patrons from yammering during dinner. The FCC responded with force, cracking down on both restaurant owners and the companies who made the jammers, Dori said.
More recently, the FCC even prohibited prisons from using the technology to block prisoners from making calls on cell phones that are frequently smuggled behind bars. It is illegal now, without special permission from the FCC, to use a cell-phone jammer.
Practically speaking, it would be difficult to force cell phone companies to shut down the multitude of towers in a particular area, said Andrew Lippman, an attorney who heads Bingham’s Telecommunications, Media and Technology Group in Washington DC.
“The whole underground and highly controlled and limited access nature of it is unique,” said Lipman.
For instance, Lipman, said that in Washington DC, the Metro for years only allowed one cell carrier, Verizon, to provide service, a monopoly that never would never be allowed aboveground.
As it stands, BART has whatever legal rights are written into its contract with the cell phone companies that rent space on BART’s underground network, Lipman said.
Johnson, the BART spokesman, said the transit agency had to balance free speech and safety concerns last Thursday. BART prohibits protests on the platforms, owing to the proximity of fast-moving trains.
Civil rights lawyers say that BART made the wrong choice last week.
“We have a right to free speech and we have a right to assemble particularly when a government official takes somebody’s life,” said Michael Risher, an attorney for the ACLU. “The government should not be cutting off the free flow of information.”
Risher said that if it went to court, BART would have to prove that it was preventing a truly dangerous situation.
Risher said that in a “true emergency” such as a bomb, a cell phone shutdown could be appropriate. “Certainly preventing a peaceful protest is not a legitimate reason.”
The Amercian Civil Liberties Union sent a strongly worded letter to BART and the FCC demanding that BART never interrupt cell service again. Many, including Franklin, expect a lawsuit soon.
“I’m sure people will sue BART,” said Franklin. “I think this is a test case: people organize through their mobile devices and when is it appropriate for a governmental agency to intervene when there’s a safety issue.”