BART Board Divided on Cell Phone Shutdown

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(San Francisco – KALW) In the wake of multiple protests that have interrupted train service and forced station closures, the Bay Area Rapid Transit's board of directors met Wednesday to discuss when, if at all, the agency should disable cell phone service on its platforms.

A video of the meeting can be viewed here.

BART cut service earlier this month in what it said was an attempt to head off the planning of a "lawless" protest of July's BART police shooting. Though officials have stood by their decision, the agency has not repeated the tactic since.

The service shutdown caught the attention of groups ranging from the FCC, which is still looking into the matter, to the ACLU, which has sent several letters to BART offering policy recommendations. ACLU of Northern California attorney Michael Risher, who was present at the meeting, recommended that BART adopt a policy allowing cell shutdowns only in extreme circumstances, such as the imminent detonation of a bomb. Under the Constitution, he said, BART platforms are considered a designated public forum, and as a government agency, BART must abide by that definition.

"If individuals go beyond what is permitted by our laws and protected by the constitution [sic] they may be held responsible for their actions; but BART cannot properly prevent protesters or other cell-phone users from speaking with one another on the telephone in the first place," said Risher in his letter.

"We all know you have to allow demonstrations in parks, and you can’t just shut the gates to the park because you don’t like who shows up there," he added at the meeting. "Whether or not the government has a duty to build parks in the first place? I think that’s what’s going on with the cell phone network here."

Several members of the public, including both protesters and regular BART customers, criticized what they characterized as a reactionary and disproportionately forceful response to this month's demonstrations. And even directors who supported the cell shutdown – and BART's right to take such an action again  – seemed hesitant to endorse the tactic wholeheartedly.

"Free speech means a lot to me," said director Gail Murray, adding several times that she was worried BART might be on a "slippery slope." But, she said, "it's not just a fantasy world anymore, it's a post-9/11 world." Murray suggested placing signs outside BART's fare gates designating those spaces as "free speech areas."

Director Lynette Sweet, who has sharply criticized both the shutdown and the agency's subsequent actions, was less equivocal. "Instead of fixing the situation, we have escalated it to the point of, we don’t know how we’re ever going to get rid of the protesters, because they’re protesting for the right reason," she said. "We’re not talking to folks the right way, and we’ve got to fix that."

Sweet also confirmed that neither BART's current legal counsel nor the FCC was consulted before the cell shutdown; interim General Manager Sherwood Wakeman said he approved the move based on his own legal training.

The board did not vote on the issue, but instead directed staff to begin crafting a policy that might incorporate the legal feedback they've received since the initial action. Board president Bob Franklin said he thought all directors could agree that in the future the tactic should be used only in extreme situations, though it was not yet clear what those situations would be. Several directors requested the involvement of the newly-appointed police review board in drafting the policy.

In the meantime, some members of the hacker group Anonymous continued their cyberattacks on BART, tweeting links to nude photographs supposedly of BART chief spokesman Linton Johnson. BART officials condemned the postings.

Casey Miner will be on KALW at 5pm PST with more on BART and the First Amendment.