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When deciding whether to utilize technology to block cell phone service, should public safety concerns or First Amendment freedoms be paramount? For San Francisco’s Bay Area Rapid Transit (BART) officials, it seems “safety”, perhaps better described as fear, trumped other considerations on August 11, 2011. The BART officials’ decision to cut off cell phone service for several hours was intended to “tactically thwart a planned protest over the recent fatal shooting of a 45-year-old man by transit police.” The transit service had learned that demonstrators intended to use their cell phones to coordinate a protest. Since the decision to disrupt cell phone calls first sparked outrage, BART has faced mounting criticism from from commuters, the media, the American Civil Liberties Union (ACLU), and even members of BART’s own Board. Board member Lynette Sweet said, “I’m just shocked that they didn’t think about the implications of this. We really don’t have the right to be this type of censor.” Some critics have compared the BART decision to that of former Egyptian president Hosni Mubarak “who ordered the shutdown of cell phone service Tahrir Square in response to peaceful, democratic protests earlier this year.” The ACLU is considering a lawsuit against BART, especially if officials continue to block celluar communications at the transit stations. The ACLU noted that the government may enforce reasonable time, place, and manner restrictions on demonstations or, in some situations, prevent protests that present a clear and present danger. However, the Supreme Court has roundly rejected prior restraint. ACLU lawyer, Linda Lye, said, “This is an example of government shutting down speech it doesn’t like. It’s a drastic and unlawful action.” Aaron Caplan, a professor at Loyola Law School, agreed, saying, “We can arrest and prosecute people for the crimes they commit. You are not allowed to shut down people’s cell phones and prevent them from speaking because you think they might commit a crime in the future.” The criticism of BART’s decision has continued in the week since officials’ decision to block cell phone service. The Federal Communications Commission (FCC) has begun gathering information as part of an investigation into the transit authority’s actions.
In response to the growing disapproval of BART’s decision, transit service officials have consistently defended their actions as necessary to maintain public safety. BART officials claimed “that they had the right to [disrupt cell phone service] because it is illegal to protest on trains, train platforms, and outside of designated areas inside the stations.” BART spokesman Linton Johnson has even stated that a transit passenger’s “right to safety” outweighs constitutional rights of freedom of speech and assembly. The Electronic Frontier Foundation (EFF) has suggested, however, that functional cell phone systems on BART do more to promote safety than blocking would in many situations. Specifically, EFF notes:
BART made the decision to introduce cell phone service to trains and platforms shortly after 9/11, in response to popular demand from BART riders who saw that New Yorkers had found cell phones to be invaluable to communicating with authorities and loved ones in the midst of city-wide confusion. And safety isn’t just about emergency situations. Every day, we rely on mobile technology to communicate for peace of mind– such as when a parent uses a cell phone to alert a babysitter that rush hour delays will prevent the timely pick up of a child.
As EFF’s comments indicate, the choice between safety and First Amendment protected communication may be a false choice altogether. Regardless of the BART officials’ stated intentions to protect commuter safety, their decision is constitutionally troubling. As University of Michigan law professor Len Niehoff, who specializes in First Amendment and media law issues, states, “The idea that [the government is] going to keep people from talking about what they might or might not do, based on the idea that they might all agree to violate the law, is positively Orwellian.”
– Megan DeLockery
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