“Lynette Sweet, a member of BART’s Board of Directors, said Monday that she opposed any further disruption of cell service and would seek to bring the issue before the board for a vote.

‘This is one where we can almost say we’re stuck on stupid,’ Sweet said. ‘We put ourselves on the radar screen for no good reason. This is a country that champions civil liberties all the time. So why would a transit agency take it upon themselves to trample on civil liberties?’”
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/08/15/MNGT1KNJU1.DTL#ixzz1VMWkmDQe

BART did do something that blurs the lines of legality. They didn’t jam signals (which is outright illegal), they turned off repeaters (which is legal), but they did it in a confined area where people might not be able to access other means of outside communication in case of emergency. Because of BART’s status as a public entity, the FCC is right to examine the legality of the action.

This isn’t to say that I think the protesters have functioned in an intelligent, well-behaved or well-coordinated manner. It should be remembered, though, that this is not the first protest in SF due to a death at the hands of BART police. 2009 saw riots because of the same issue, and that is no doubt a part of the reason for BART’s reaction to the most recent protests. Unfortunately, in reacting the way they did, BART acted out against already frustrated commuters as well as protesters. Let’s face it, BART seems to have a knack for for overkill.

My thoughts:

Prior restraint–This is not a case of prior restraint because specific material or a specific message was not prevented from being shared. What was prevented or interfered with was a physical assembly and access to a network, which could be equally problematic or douchey, but it ain’t the same thing.

The right to access networks–I absolutely agree that public networks should not be shut down. In this case, BART manages two public networks: one a communication network, the other a transportation network.

On July 11, protesters forcibly shut down the public transportation network.

On Aug 11, facing another protest, BART decided that shutting down one network (comms) could prevent the shutting down of the other (transport). As a result, tens of thousands of people were denied access to a comms network, but they retained access to the transportation network.

On Aug 15, due to concerns about the shutting down of the comms network, BART chose to shut down the transport network (because keeping it open could cause an unsafe condition on the platforms due to protests). (EDIT–They actually shut only part of the transport network, a few stations, to keep the rest of it running.) As a result, the protesters once again achieved their goal, and tens of thousands of people were denied access to the public transportation network. (I don’t know if passengers on trains passing through the closed stations had access to the comms network, but I presume that they did.)

It is absolutely valid to question the shutdown of the comms network. This sort of thing shouldn’t go by without serious investigation of legality and potential public harm. But I think it is facile to state that one public network is sacrosanct without recognizing that the other network controlled by BART is also public and also vital to a great many people.

Freedom of expression/assembly–Whether BART is organized as a public-chartered corporation or as a public agency doesn’t matter. It’s still what’s called a transit authority whose purpose is to provide public transportation, and must abide by the law.

The Freedom Forum has a very good summary of the relevant constitutional jurisprudence, which explains the difference between “traditional public forums” (e.g., parks, streets, sidewalks), “limited public forums” (e.g., university meeting facilities, municipal theaters and school board meeting rooms), and “non-public forums” (e.g., street-light posts, prisons, military bases, polling places, a school district’s internal mail system and airport terminals).
http://www.freedomforum.org/packages/first/publicforumdoctrine/

BART has stated that it considers itself a non-public forum and I’d have to agree. From US vs. Kokinda, a postal sidewalk is a non-public forum because blocking it could disrupt postal business. International Society for Krishna Consciousness v. Lee concludes similarly about airport terminals. The case law allows the state to regulate time, place, and manner of speech or to reserve the forum for its intended purpose, in this case as a transportation network, as long as the limits on speech are reasonable and not driven by opposition to the views expressed.

Sure, BART benefits from the views of these protesters not being shared, but I’d submit that BART had legitimate objectives on Aug 11 to: 1) prevent shutdown of the public transportation network, and 2) prevent unsafe conditions in the station.

And let’s be plain, the protesters’ objectives are not simply to express their viewpoint, but also to interfere with the operation of the public transportation network. Moreover, they do so in a manner that others have already pointed out, and is pretty obvious to anyone that has stood on a BART platform, has a high risk of physical danger to both protesters and bystanders.

I’d also submit that it is appropriate for BART, as a transportation authority, to prioritize the operation of the transportation network that it controls over the communications network that it controls.

Those are merely my opinions, and I welcome reasonable disagreement.

Finally, I submit that, while issues of the death of Mr. Hill and the legality of the comms network shutdown need to be resolved, additional threats to the operation of a vital public transportation network doesn’t do anyone any good. I hope that reasonable people can at least agree on that. If we’re at the point where people actually think that shutting down our metropolitan area over these two issues is warranted, that would cause me some pessimism about the future of our society.

It’s not uncommon. I worked in a tower in Chicago that had repeaters installed in the elevator shafts, because god forbid some self-import douche has to suspend a phone call while traveling in the elevator. It was architected and installed by in house IT (myself and others)

Oh, that and I work with wireless (mostly enterprise class 802.11 stuff), but some of the sites include CDMA/GSM repeaters if a spectrum analysis indicates they’d have poor reception otherwise (like underground).

edited to clarify

BART has a legal obligation to protect the safety and welfare of its customers (i.e. the public) while in the station.  Did BART have a reasonable fear for public safety based on prior BART protests?  I think they did.  Was their action justified based on that fear?  That’s the big question.

Obviously, free speech and assembly are not completely unlimited rights– you can’t burn down the courthouse or shoot someone in the name of free speech.  What is the legal boundary between free speech/assembly and public safety?

As a BART customer, the idea of having a protest inside the station, and especially on the platform, is frightening.  It’s dangerous.  Unruly mobs are unruly, and protests can quickly escalate from peaceful to nasty.  I live in Oakland, and the Oscar Grant protests/riots were fairly close to my home.  It’s not unreasonable for BART to have had those events color their expectations for this protest.

If a fire broke out, it’s not clear that everyone would be able to escape safely.  Imagine what would happen if someone accidentally got pushed off of a platform and in front of a train, or onto a third rail.  I think we can all agree that would be a very bad scenario, and one that BART should have tried very hard to avoid.  Remember, that it only takes one stupid douchebag to cause a real mess.

To the best of my knowledge, BART only disabled cellular coverage within the station itself.  It did not (and almost certainly could not) do anything to affect above-ground service.  For the person who was wondering, BART tubes are pretty far below ground at that location and signal rarely if ever can get down there.

I think that the right place for this protest to occur was where it did on Monday– on the streets.  That is far safer than doing it in a station, is more visible, and allows arbitrarily large groups to assemble.  It also makes it much easier for people who do not want to be near the protesters to avoid them, since escape routes are available on every corner.

Should BART have disrupted free speech?  No, obviously not.  Was it a good idea to force protesters onto the street rather than in the station?  That’s a harder question, but the idea certainly has some merit.  Was this BART’s goal?  I don’t know.

Thus endeth this episode of “Patti Plays Devil’s Advocate”.  Opinions expressed here are the result of the author having tried to understand both sides of the story, and may not reflect her personal views.

or stopping the system from being shutdown, as this group did on July 11 and as they stated that they were going to do again August 11?

Whether BART pulled a douche move is another.

BART is not a private business. It is operated by a government-created entity in the state of California.

The reason for killing the service was to prevent protests about the recent killing of a BART rider by BART officers. There have been two such killings by BART officers in recent years. A lot of people find that disturbing. Some people were disturbed enough that they wanted to hold public demonstrations to air their concerns.

I submit to you that for a government agency to shut off voice, data, and emergency 911 service for the purpose of squelching constitutionally protected free speech? That’s AT LEAST a douche move.