BART cell phone service shutdown: time for a virtual forum?

• Author: Lackert, Rachel
• Position: Bay Area Rapid Transit

1. INTRODUCTION II. BART CELL PHONE SERVICE SHUTDOWN A. Overview B. BART's Response and New Policy C. FCC Review III. BACKGROUND A. The Communications Act of 1934 1. Overview 2. Blocking and Jamming Signals B. The First Amendment 1. Freedom of Assembly 2. Freedom of Speech: Prior Restraints 3. Freedom of Speech: Public Forum Doctrine IV. BART CELL PHONE SERVICE SHUTDOWN IMPLICATIONS A. The Communications Act of 1934 B. Freedom of Assembly C. Freedom of Speech: Prior Restraints D. Freedom of Speech: Public Forum Doctrine V. NEW PUBLIC FORA: THE "VIRTUAL FORUM" VI. CONCLUSION I. INTRODUCTION

   The balancing act between protecting First Amendment rights and the necessity of law enforcement to maintain public order is not simple under any circumstances, but, in 2011, this conflict was front-page news. (1) Rapid advances in technology, such as smartphones and social networking platforms like Twitter and Facebook, have severely heightened this issue by providing people with a greater capability to organize and implement protests quickly. (2) From "flash mobs" that rampage through the streets (as they did in England), (3) to revolutions which overthrow governments (as they did in Egypt), (4) to peaceful protest movements such as Occupy Wall Street (5) (and all of the "Occupy" spinoffs such as "Occupy D.C.") that exploded overnight, all have one aspect in common--rapid communication by protesters via text, Twitter, and Facebook on Internet and non-Internet based cell phones. In fact, in countries where the Internet was shut down, as happened in Egypt, (6) the only means of communication was through the existing telephone system and landlines because this service was not easily or centrally controlled by Internet servers. (7)

   As governments across the political spectrum have become alarmed at this development, they have struggled with how to respond by giving varying weights to public expression versus public order. In the United States on August 11, 2011, the very essence of this problem was exemplified by the Bay Area Rapid Transit's ("BART") actions in San Francisco, California. (8) BART decided to shut down Internet and cell phone service on station platforms to prevent people from communicating with each other in order to organize and implement planned protests. (9) The protests were held to express continuing public outrage over the use of alleged excessive force by BART police officers for fatally shooting a man on July 3, 2011. (10) BART stated that the shutdown was proper to protect public order, (11) but this unilateral action raised significant legal questions as to whether this was authorized under federal telecommunications law relating to the right of the passengers to access the telephone network and the legality of a shutdown by a quasi-governmental authority such as BART. Additionally, BART's actions raised issues concerning the First Amendment rights of the passengers and protesters to freedom of speech and assembly.

   Both the constitutional and telecommunications law implications of BART's cell phone and Internet shutdown provide for needed analysis and reform, especially in an age of rapidly advancing technology. Part II of this Note will discuss the facts surrounding the planned protests and BART's reaction to the crisis by shutting down cell phone and Internet service. Part III will highlight portions of the Communications Act of 1934 ("the 1934 Act") and expand on its relevance in relation to emerging technologies. Additionally, Part HI will discuss the First Amendment under the freedom of assembly and speech doctrines, focusing primarily on prior restraints and public forum doctrines. Part IV will assess the potential issues raised by BART's cell phone and Internet shutdown in relation to telecommunications law and the First Amendment in light of the clearly political nature of the speech involved. Finally, Part V will offer a proposal to conform current technology and the law by recognizing the principle of a "virtual forum" comprised of the Internet and telecommunications networks. This virtual forum is extensively used in the present as a means for political expression and should be protected by the First Amendment. The recognition of the virtual forum will adequately protect First Amendment rights in the wake of recent government tendencies to shut down communication nodes, which are arguably performed either to protect the public order or to suppress opposition.

2. BART CELL PHONE SERVICE SHUTDOWN

   1. Overview

      Protests were organized to demonstrate public outrage over the shooting of Charles Hill by BART police officers on the Civic Center station platform on July 3, 2011. (12) BART officials stated that Hill wielded a four-inch knife and threw a bottle at BART officers before he was fatally shot. (13) This followed a highly publicized fatal shooting on January 1, 2009, where a BART officer shot Oscar Grant III in the back while he lay unarmed on the station platform. (14) The officer was found guilty of involuntary manslaughter and served only eleven months of a two-year sentence after claiming that he mistook his firearm for a stun gun. (15)

      A social justice group named "No Justice No BART" deemed these shootings to be use of excessive force by BART police officers and decided to organize a protest on the Civic Center station platform, where Charles Hill was killed. (16) On July 11, 2011, people gathered for a demonstration at the Civic Center station where, according to BART, at least one person climbed on the top of the train while other protestors blocked train doorways and held train doors open. (17) As a consequence, other BART stations were completely or partially shut down and inoperable. (18) When BART officials learned that a similar protest might be planned for August 11, 2011, they decided to block all cell phone and Internet service at certain spots within the BART railway system. (19) Service was shut down from 4:00 p.m. to 7:00 p.m. in the Embarcadero, Montgomery Street, Powell Street, and Civic Center BART stations. (20) This unprecedented action was intended to prevent potential protesters from using social media in order to help others avoid the BART police. (21)

      According to BART, Verizon, AT&T, and T-Mobile all provide service in the Transbay Tube, which "runs beneath the San Francisco Bay, connecting San Francisco to Oakland, Berkeley, and other East Bay cities." (22) Cell phone providers were not asked by BART to shut down their towers located near BART stations and BART did not ultimately jam these wireless signals. (23) However, "BART owns and controls the wireless networks strung through its subways, and BART police ordered it switched off, after receiving permission from [the] BART Interim General Manager." (24) The shutting down of cell phone and Internet service made it impossible for protesters to organize, and efforts to engage in the planned protests were ultimately thwarted by the actions of BART officials. (25)

      BART's shutdown of cell phone and Interact service generated outrage among commuters, civil libertarians, and the activist group Anonymous. (26) Anonymous, an infamous international hacker network, planned subsequent protests in response to both the excessive force used by BART officers and BART's shut down of cell phone and Internet service. (27) Additionally, Anonymous disabled BART's official website for six hours, twice as long as BART shut off cell phone and Internet service. (28) The hacking resulted in the release of "the names, home addresses, and e-mail addresses and passwords of just over 100 BART police officers." (29)

   2. BART's Response and New Policy

      BART officials stated that the cell phone and Interact service shutdown was in their legal authority as it was executed "out of concern that protestors on station platforms could clash with commuters, create panicked surges of passengers, and put themselves or others in the way of speeding trains or the high-voltage third rails." (30) The decision was made after BART officials saw details of the protest on an organizer's website. (31) BART officials made a formal statement on their website that "organizers planning to disrupt BART service on August 11, 2011 stated they would use mobile devices to coordinate their disruptive activities and communicate about the location and number of BART Police." (32) Additionally, BART officials stated that "a civil disturbance during commute times at busy downtown San Francisco stations could lead to platform overcrowding and unsafe conditions for BART customers, employees and demonstrators." (33)

      BART officials also noted that BART owned the equipment that it shut off, and that it provided Internet and cell phone service to its customers as a sort of amenity, which BART had the right to discontinue at any time. (34) BART spokesperson, Linton Johnson, stated "that the cell phone companies are like tenants and 'part of their agreement was that during a safety sensitive or emergency situation that [BART] can turn off the [cell phone] service.'" (35) BART also released a statement on August 18, 2011, addressing free speech: BART's primary purpose is providing "safe, secure, efficient, reliable, and clean transportation services." (36) The statement also added that "BART accommodates expressive activities that are constitutionally protected by the First Amendment to the United States Constitution and the Liberty of Speech Clause of the California Constitution (expressive activity), and has made available certain areas of its property for expressive activity." (37) The BART statement implied that areas outside the stations and platforms that are accessible to unticketed individuals can be used for expressive activities. (38)

      In December 2011, in order to accommodate free speech concerns, BART created a new policy regarding the shutting down of cell phone and Internet service. (39) The policy allows BART officials and police to shut down wireless...