New BART cell policy nods in First Amendment’s direction

Friday, December 2, 2011

The Bay Area Rapid Transit system in California has settled on a plan that recognizes First Amendment concerns by limiting future cell-phone service shutdowns to “extraordinary circumstances.”

BART’s board of directors voted yesterday to approve the new policy, allowing officials to cut off wireless service to prevent disruptive demonstrations in its train stations, but only in extraordinary situations involving public safety. The change is a nod to the sharp criticism BART received last summer for closing down service in four stations.

“The intent … is to balance free-speech rights with legitimate public safety concerns,” the Associated Press quoted BART Board President Bob Franklin as saying.

In late August, BART became the first government agency in the United States to shut down cell and other electronic communications in an attempt to prevent threatened protests. The move attracted national attention, and criticism from various civil liberties quarters as an Orwellian response to the mere threat of protests.

BART officials said at the time they feared that the protesters would use cell phones to form “flash mobs” and cause overcrowding on train platforms, endangering riders. The protests stemmed from a police shooting in a station.

In the new policy, BART says electronic service may be interrupted only when there is “strong evidence” that cell phones may be used to set off explosives, substantially disrupt transit services or can be tied directly to plans for violence or crime.

The policy is said to be an effort to balance the public’s free-expression and assembly rights against BART’s obligation to ensure the safety of its passengers and staff. News reports say BART officials included recommendations from the FCC that the policy stipulate that “the public safety benefits outweigh the public safety risks of an interruption” in order for cell phone service to be turned off.

Author George Orwell’s novel 1984 portrayed a Big Brother of unlimited government power to monitor and shape how citizens talked to each other. BART’s board, in its new policy, seems to have chosen more of a “friendly uncle” approach, with clear guidelines for police and a recognition of First Amendment rights.

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