On Wednesday night, just hours before BART was set to vote on new guidelines on shutting off cell phone service, the federal government put pressure on the transit agency to ensure such tactics would be used only in the most dire situations.
The Federal Communications Commission called BART and advised the transit agency to add specific language to its proposed policy, which would make it more difficult to shut off cell service. The commission wanted BART to make it crystal clear that interrupting wireless services “poses serious risks” to public safety, and that communications networks are critical to democracy and should be maintained to the “fullest extent possible.”
The FCC also wanted the transit agency's policy to state that BART would shut off service only if "the public safety benefits outweigh the public safety risks of an interruption."
BART board president Bob Franklin said that the transit agency had asked for input from the FCC and added the suggestions into the policy verbatim.
On Thursday morning, BART's board of directors adopted the policy, which will allow the transit agency to shut down the wireless network only in the event of "extraordinary circumstances" such as the threat of a cell-phone detonated bomb or hostage situation.
BART did not have such a policy in place on Aug. 11, when it shut down cell phone service to thwart a planned protest. The idea to shut off service was first proposed early that morning, in an email written by Linton Johnson, who was then BART's communications director. BART's top staff approved the decision a few hours later, with little discussion of the possible consequences.
The shutoff outraged many BART passengers and sparked demonstrations by the hacktivist group Anonymous, which claimed the transit agency's decision violated rider's first amendment rights. And public advocacy groups, such as the non-profit Public Knowledge, filed complaints with the FCC.
The FCC praised BART's actions on Thursday.
“Today BART took an important step in responding to legitimate concerns raised by its August 11, 2011 interruption of wireless service,” said FCC Chairman Julius Genachowski in the email. “As the policy BART adopted recognizes, communications networks that are open and available are critical to our democracy and economy.”
Also on Thursday, the FCC announced that it would soon begin a “public process” to sort out the “significant and complex” issue.
“I have asked Commission staff to review these critical issues and consider the constraints that the Communications Act, First Amendment, and other laws and policies place upon potential service interruptions,” said Genachowski in an email. “We will soon announce an open, public process to provide guidance on these issues.”
Although no hearing on BART has been scheduled, the FCC’s actions met with approval from critics of the wireless shutdown.
“It’s an indication that the commission recognizes that this is a very important issue and that there is a federal interest in ensuring that governments don't turn off telecom without any sort of process,” said Harold Feld of Public Knowledge, a nonprofit organization that advocates for the rights of technology users. “It’s a sign that the FCC and that the country is looking at BART as they make this policy.”
BART’s Franklin said that under the new policy, the transit agency would not interrupt cell service if it were again facing a planned protest. But the policy itself is still somewhat vague in places, allowing BART to shut down cell service to prevent "substantial disruption of public transit services."
The ultimate decsion-making authority will rest in the hands of the general manager, Grace Crunican, but in some cases the police commander will be able to make the call if Crunican is not immediately available.
After the shutdown, Franklin said he expected that it would result in lawsuits. But so far there have been none. The American Civil Liberties Union, which considered suing BART, helped craft the policy the transit agency adopted.