Bay Area Rapid Transit authorites knew denying cell phone service might be unconstitutional

(AP)    The idea to cut wireless communications to quell a brewing protest – a tactic that has put San Francisco’s subway system in the middle of a global free speech debate – first came to the agency’s chief spokesman in the middle of the night.

Bay Area Rapid Transit spokesman Linton Johnson said Tuesday that he was lying awake early Thursday when he was struck by the thought of shutting off power to the agency’s wireless networks.

He sent an e-mail to BART police, who had asked employees for all ideas – “good or bad, constitutional or unconstitutional,” Johnson said.

BART Police Deputy Chief Ben Fairow responded that he liked the idea, and interim general manager Sherwood Wakeman, formerly the agency’s top lawyer, signed off on the plan, Johnson said.

BART’s board of directors was told of the tactic before 5 p.m. Thursday when it was deployed, he said.

The tactic is now at the center of a growing debate in the United States – and around the world – over whether BART officials acted properly to ensure commuter safety or overreached and violated free speech rights when it became the first U.S. governmental agency to shut off wireless service to disrupt protest.

The action has been compared unfavorably to Hosni Mubarek’s attempt to shut down the Internet in Egypt before protesters forced him from office.

On Tuesday, Johnson said he had no regrets and BART reserved the right to cut power again if faced with the same circumstances.

The agency kept the power on during a rowdy protest Monday that prompted the brief closure of four San Francisco stations during the evening commute.

Johnson said that’s because “the information we had Monday didn’t meet the constitutional standards” to cut communications like it did last week.

On Thursday, protest organizers posted instructions for the demonstration on websites and on Twitter, indicating more instructions would be issued electronically just before the demonstration was to start.

The demonstration was planned after BART police shot and killed Charles Hill, a 45-year-old transient, on July 3.  BART police said he lunged at officers with a knife.

On Monday, organizers simply called for protesters to gather on the Civic Center station platform at 5 p.m. Cutting communications wouldn’t have helped police control the situation, Johnson said.

That demonstration was called in response to the communication cut last week. About 50 demonstrators massed on the platform with free speech signs chanting “no justice, no peace.” One protester was walking around with a toy phone shouting “can you hear me now.”

While Johnson’s idea has drawn criticism from some civil libertarians and free speech advocates, others inside and out of the agency supported the decision.

BART board president Bob Franklin said cutting communications led to a safe, uninterrupted commute Thursday night after the protest failed to materialize.

Franklin said doesn’t see BART ever again shutting the wireless network to quell a brewing protest. That’s because he believes future protesters won’t rely on their cell phones to organize, knowing BART has the capability to cut communications in its station.

“I don’t see a need to do it again,” Franklin said.

In an interview Tuesday, Franklin defended the agency’s actions to cut communications, saying it was legal and appropriate to ensure commuter safety.

“It stopped the protest,” Franklin said of the action.

Franklin said BART’s lawyers also believe its strategy Monday was a legal way to ensure safety on its crowded platforms.

Nonetheless, Franklin said he expects BART will get hit with a lawsuit, even though he thinks the issue of cutting communications to quell potentially dangerous demonstrations needs to be decided on a national level.

“It’s an interesting issue of free speech,” Franklin said. “The debate is now well beyond BART.”

Civil libertarian groups have backed away from threats to legally challenge BART over the issue, even though advocates fear other government agencies will use similar tactics if the practice isn’t challenged in court.

The American Civil Liberties Union met with BART’s police chief Monday even as demonstrators protested the agency’s previous action to block wireless reception.

After the meeting, ACLU attorney Michael Risher said the organization had no plans to immediately file a lawsuit and he was disappointed that he didn’t extract a pledge from BART to refrain from similar tactics in the future. He planned to keep meeting with the agency.

“While the American Civil Liberties Union of Northern California is not currently in the process of filing a lawsuit against BART for shutting down wireless service, we have not entirely ruled out the possibility,” ACLU spokeswoman Rebecca Farmer said Tuesday. “This is a rapidly evolving situation. We are in conversation with BART, and our analysis will change depending on BART’s actions going forward.”

The Electronic Frontier Foundation, too, said it was unlikely to file a lawsuit over the disabling of wireless reception for three hours.

Still, the shutdown of wireless towers in stations near the protest Thursday raised questions about the role that social networks play in helping people, from Egypt to London, organize online. In the U.S., with its history of free speech, critics are saying BART’s move was unconstitutional.

Elijah Sparrow, one of the protesters Monday night, called the demonstration “one of the defining battles of the 21st century over who is going to control communication.”

BART’s actions Thursday night prompted a Federal Communications Commission investigation, and a hacking group organized an attack on one of the agency’s websites on Sunday, posting personal information of more than 2,000 passengers online. The group Anonymous called for a disruption of BART’s evening commute Monday.

BART officials said they were working on a plan to block any efforts by protesters to disrupt the service, which carries 190,000 passengers during the morning and evening commutes every day.

BART experienced several large protests that turned into riots after a white transit officer shot unarmed black commuter Oscar Grant on New Year’s Day 2009. Johannes Mehserle resigned from BART and was later convicted of involuntary manslaughter.

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