At 2:20 a.m. on Aug. 11, BART spokesman Linton Johnson fired off an email to the transit agency's top police officials suggesting that they shut off cell phone service to foil a protest planned for later that day.
At 5 a.m. — less than 12 hours before the protest was to begin — BART's deputy police chief, Benson Fairow, voiced approval in a short reply, according to emails obtained by the Bay Citizen:
The decision, which was given final approval less than four hours later and implemented that afternoon, turned out to have a significant downside.
The cell phone shutdown inflamed people around the world who compared BART to the repressive Hosni Mubarak regime in Egypt. It spurred an amorphous group of hacktivists known as Anonymous to hack into BART websites. It led to weeks of demonstrations that at times delayed the evening commute for thousands and cost BART more than $300,000 in police and staff overtime.
In the wake of the scandal, BART officials characterized the shutdown as a difficult decision made after rider safety was weighed carefully against the rights of the protesters.
“We struggled with that decision,” spokesman Linton Johnson said at an Aug. 16 press conference. “That was a gut-wrenching decision. This agency takes free speech seriously."
But emails that BART released to The Bay Citizen this week show the decision was made on the spur of the moment with little discussion of the possible consequences. Officials approved one of the most controversial proposals in BART's history just hours after it landed in their inboxes.
The final sign-off came from then-Interim General Manager Sherwood Wakeman between 8:30 and 8:45 a.m. at a meeting of top BART staff that began at 8:15 a.m., according to Jim Allison, a BART spokesman. The discussion of the idea lasted between 15 and 30 minutes.
Lynette Sweet, a BART board member who has criticized the shutdown, said the short timeline showed that "not a whole lot of thought went into it."
"My problem with that entire episode is that we didn't have enough leadership at the top to realize that the decision to turn off the cell phones was going to bite BART in the butt, which it did," Sweet said.
Grace Crunican, BART's new general manager, said shutting down cell service would not have been her "preferred choice," but said that the leaders were trying to thwart protesters who had climbed onto a BART car during a demonstration held a month earlier in response to the fatal July 3 BART police shooting of a knife-wielding homeless man.
"I undertand that they were responding to that situation and felt some need to try something different," she said.
Crunican said that the board will be considering a policy that would allow a wireless shutdown only in the event of "terrorist activity," and not in response to a protest.
Johnson, the spokesman — who has been on leave from BART since Anonymous publicized partially nude photos of him in mid-August — suggested the shutdown after BART police said they found an online posting indicating that protesters were planning to chain themselves to objects and communicate via text message. In his late-night email, Johnson wrote:
After Fairow's initial response, BART police Chief Kenton Rainey wrote to Fairow and Johnson at 6:38 a.m. with more praise for the idea:
At around 7:45 a.m., before Wakeman had signed off on the decision, Lt. Kevin Franklin, BART police's acting manager for security programs, was already asking BART's telecommunications staff about how to shut down the wireless service. His query was met with skepticism from Dirk Peters, a BART employee charged with communicating with the cell phone carriers that rent space on BART’s network. Peters questioned the hurried nature of the request in an email sent at 8:18 a.m.
Franklin replied to Peters six minutes later that it could not wait.
Franklin prevailed on Peters, and at 8:45 a.m., apparently just minutes after Wakeman gave the go-ahead, Peters sent an email to Forza Telecom, the contractor that runs BART''s cell phone network, asking for the shutdown:
Wakeman, who served as BART's top lawyer for years, declined to comment for this article. In the days following the decision, Johnson said that Wakeman had consulted the Supreme Court case Brandenburg v. Ohio, which lays out circumstances when "inflammatory speech" can be squelched, before allowing the wireless shutdown to go forward.
Sweet questioned whether a thorough legal analysis was ever done.
"I don't know a hundred percent, but that Supreme Court case certainly seemed like an afterthought," she said.
At a public hearing on Aug. 24, Sweet put Wakeman on the spot, asking whether BART's legal department was consulted on the decision.
"Well, um, the discussion took place with counsel in the room," Wakeman stammered. "This is an issue which, from my own experience, when there is an imminent danger or threat of violation of law, there is legal authority, um, to curtail free speech."
Wakeman is no longer the interim general manager, but he is still working at BART as an independent contractor, consulting on matters such as the Clipper card.
The BART board was briefed on the issue during a closed session of its normal meeting later on the morning of Aug. 11. Sweet said that Rainey, the BART police chief, told the board a wireless shutdown was one of the tactics BART might use to thwart the protest, but did not ask permission.
"They didn't consult the board," said Sweet. "It was definitely a decision that should have gone to the board."
At 4 p.m. that day, BART shut down cell phone and wireless service at downtown San Francisco stations. The protest never materialized.
Johnson, the spokesman, has also come under fire for another idea he came up with the early morning hours of Aug. 11. He arranged a press conference intended to sway public perception and media coverage, hired car service to transport "loyal riders" there and back, and wrote a script for them to read from.
Johnson did not return a call seeking comment. Allison, the spokesman, said he didn’t know whether Johnson would be returning.
“The question is asked every day,” said Allison, who is now acting as the chief spokesman for BART. “All I’ve been told is that he's an employee and he's on leave.”