Published March 30, 2012
Is it ever OK for the government to silence the public's electronic communications?
The Federal Communications Commission is looking into that question, after a protest in San Francisco turned into a debate over free speech rights -- and over limiting those rights for the public good.
On Aug. 11, Bay Area Rapid Transit, or BART, learned that demonstrators were massing on a train platform and would get further instructions via text message.
In an unprecedented move, BART officials shut off cellphone service underground, thwarting the planned protest and sparking a firestorm of controversy around the First Amendment. Some even compared BART to regimes that try to quell social unrest by silencing electronic communications.
After weeks of debate, BART became the first transit agency in the country to adopt specific guidelines for jamming cellphone service.
"Our cellphone policy is set up for life safety and law enforcement purposes only. That's the only time we'll end up shutting down the cell service," BART Board President John McPartland said.
The agency says such scenarios might include the report of a bomb that could be detonated by a cellphone, a hostage situation or the threat of a train being stopped or damaged. Under this policy, cellphone service would not have been turned off last August.
But free speech advocates aren't convinced the landmark policy will really protect anyone.
"There's always going to be real true emergencies where maybe BART has to act," says Trevor Timm, an activist with the Electronic Frontier Foundation. "But the problem is this policy is written way too vaguely and could capture a lot of protected First Amendment speech."
Civil liberties groups have petitioned the Federal Communications Commission to clarify the rules and state that governments cannot shut off cell service for content reasons.
BART riders are mixed about whether public agencies should be able to interrupt wireless service during an emergency.
"If people are rioting and out of control and they're trying to prevent more people from coming in, then I think I could go along with it," said one rider. But another wondered how people could reach their friends and families: "I don't see how it can make it any safer, cutting off cell use. Does that make it safer?"
BART officials say they worked closely with attorneys and want their new policy to serve as a model for other public agencies if they're debating whether to silence electronic communications. BART's McPartland says he knows another service interruption will fuel the debate, but he's not concerned.
"We recognize the fact that it is a civil liberties position, but quite frankly, if your question is, 'does life safety trump First Amendment rights?' the short answer is, yes."
The FCC is currently taking public comment. It's expected to issue its ruling in the next few weeks, giving guidance to all public agencies on when it is, and isn't, OK to intentionally jam communications.