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BART tackles its 'Big Brother' moment

At hearing to discuss why transit authorities cut cell phone access during a protest rally, Orwell metaphors and hand-wringing rule the day.

Michael Risher, staff attorney at the ACLU of Northern California, speaks to the BART board of directors today at agency headquarters in Oakland, Calif., during a special session to discuss the transit district's shutdown of cell phone service during protests. James Martin/CNET

OAKLAND, Calif.--Bay Area Rapid Transit should only interfere with public communications in extreme emergencies, a director for the agency said in a special meeting called here today to discuss its cutting off of cell phone service to block an anti-police violence protest a few weeks ago.

"The First Amendment and the right to have a communications channel are what people are looking for because it's part of this democratic society we live in...We can't sit back like Big Brother and say we don't like the message," said Lynette Sweet, a member of the board of directors for the San Francisco area subway agency, also known as BART.

"If we are going to shut off cell service ever, it needs to be under the most extraordinary the 9-11 level. Not the protests we thought were going to happen on August 11," Sweet said at a meeting at BART headquarters. "It has to be a dire emergency. We don't get to stop people from communicating with one another, even if it is for protest."

The room of about 70 attendees broke into applause at her words, but several of her colleagues on the board disagreed, arguing that cutting cell service to head off a protest a few weeks ago was justified to protect the safety of passengers.

BART's move has provoked strong public backlash, including several protests that turned out peaceful but prompted BART officials to close San Francisco stations during rush hour commutes.

BART Board of Directors President Bob Franklin said he supported the cell service shutdown when briefed by the BART police beforehand because of the possibility for harm to passengers.

"We received news the day before that this was going to be a ramped-up protest," he said. "Although it's hypothetical that someone is going to get hurt...It's my opinion, and why I supported [BART Police Chief Ken] Rainey's tactic, that we couldn't take that chance."

BART Director Lynette Sweet speaks to the press following the special meeting today. James Martin/CNET

The move was not intended to stop free speech, but to serve as a "passive way" to deal with potentially disruptive protesters who reportedly planned to chain themselves to gates and who had held train doors open and jumped on top of train cars in previous protests, Franklin said. The demonstrators were protesting the fatal shooting of 45-year-old Charles Blair Hill on July 3 by BART police officers in the Civic Center station.

"The second week of August (BART) received information from a reliable source" that another protest planned by No Justice No BART was scheduled for the Civic Center station at 5 p.m. [August 11]," Rainey said. "It became quickly apparent that they were probably going to use flash mob" techniques to organize the protest and planned to use cell phones for "encouraging, promoting, and inciting illegal behavior," he added.

Later, Sweet asked for more information on what consideration went into the decision to shut off cell service and whether BART officials had received counsel as to the legal ramifications of the move. Sherwood Wakeman, interim general manager for BART, said he "ultimately authorized" the decision based on his belief that the demonstration would be a "serious threat to the safety of our patrons." He also said that BART legal counsel had advised him that there are narrow exemptions to free speech protections, "and I believe this was one of them."

The four downtown stations affected by the cell service shutoff are the busiest in the system, with an estimated 500 people per minute entering them during the peak evening commute, said Paul Oversier, assistant general manager of operations at BART. "If trains don't flow freely through downtown San Francisco in the p.m., things can go very wrong very fast," he added. "This represents a real and tangible threat."

Free speech issues
BART General Counsel Matt Burrows said he did not see any legal objections to the cell service shutoff because subway platforms are not designated free speech forums and because of a court decision, Brandenburg vs. Ohio, that established that the government can restrict speech if there is a threat of violence and unlawful conduct. In this case, protesters "were going to implement their demonstrations," as well as "monitor and combat BART police response via cell phones," he said.

Asked by Sweet if BART had contacted the U.S. Federal Communications Commission beforehand, General Manager Wakeman said he had not, but had been in touch since then with the FCC, which is looking into the matter. FCC Commissioner Robert McDowell said this week that the criticism of BART appeared to be valid, but questions remain. "What the heck happened, what precedent does it set, were there any laws that were broken?" he said yesterday at a technology conference in Aspen, Colo.

State regulators also are interested in BART's actions. The California Public Utilities Commission has asked BART officials to attend a hearing scheduled for September to discuss the matter, Rainey said.

Board members were mixed in their opinions on the cell service action. But they agreed that the case of a government entity shutting off access to a communications medium as a method of countering protest--which has been done in other countries but never in the U.S. until now--is being followed closely.

BART Directors Bob Franklin (board president), Thomas Blalock, and Gail Murray discuss the transit agency's response to protests during a special session in Oakland, Calif. today. James Martin/CNET

"We must guard First Amendment freedom of speech and this will become a landmark case," said BART Director Robert Raburn. "We must also guard against a drift toward a police state...Neither speculation about a protest nor mere disruption of train service, nor other illegal activity by itself, constitutes a risk to passenger safety that would warrant interruption of cell service."

"I think we should err on the side of not allowing suspension of cell phone service," said BART Director Joel Keller. "That is something that is a right. Once we headed in that direction and allowed cell phones to be utilized in the district, we have to protect that right." "This is the beginning of a review from a national perspective on this entire issue," said BART Board of Directors Vice President John McPartland. "We still have to provide for the safety of our patrons, and overcrowding to the point of putting the lives of innocent people...[at risk] not acceptable."

"What if somebody fell onto the third rail?" asked Director Gail Murray, adding that the place for protesters is outside the fare gate. "Safety, in my opinion, is our first and primary responsibility."

After a member of the public brought up the matter of how serious the cell service cut off could have been for people with hearing disabilities who rely on touch-type devices to communicate, Oversier said BART personnel were on hand to help anyone who might have needed assistance during the cell service shutoff.

Sweet was critical of BART's overall handling of protests and said the agency had missed an opportunity to improve relations with the public and let the community know that things have changed since January 2009 when an unarmed Oscar Grant was shot and killed while officers were attempting to restrain him. Demonstrators "are protesting for the right reason," she said. "Our counter-protest strategy is simply not working...what will it take to get these protests to stop? It's a real simple question."

"Krystof," one of the leaders of the activist group No Justice, No BART, speaks to the BART board of directors during a public comment period of today's meeting. James Martin/CNET

And Sweet raised questions about security of BART's computer systems in light of a hacking incident that exposed subscribers' personal data. She asked if the agency was taking adequate precautions to vet outside companies that have access to the computing systems.

General Counsel Burrows said the agency contacted the FBI after the hack and is "working with them to make sure security going forward with outside vendors is up to par."

"What if they had hacked...something more valuable to this institution [than] just MyBART?" Sweet said. "We could open ourselves up to real issues."

About 10 members of the public spoke out against the cell service shutoff, while half that many or fewer spoke in favor of it citing public safety concerns, including several affiliated with BART as employees or union representatives.

"The cell phone network is a designated public forum under the U.S. Constitution and that means BART can't interfere with it in an unreasonable way...except in very limited circumstances," said Michael Risher, staff attorney at the ACLU of Northern California. And regardless, "just because something is legal and may pass constitutional muster, doesn't mean it's right."

The board expects to have a vote in the next few weeks on a policy establishing conditions for when shutting down cell service would be appropriate, said Franklin.

Along with the group No Justice No BART, the Anonymous collective of online activists have taken an active role in criticizing BART's actions and promoting protests since the cell service shutdown. The groups have called for BART police to be disbanded and Anonymous has called for the resignation of BART spokesman Linton Johnson, who has been unwavering in his defense of BART's actions.

The complaints turned nasty when someone affiliated with Anonymous posted on the Internet Johnson's personal contact information and photos, including one that appeared to be him scantily clad. At least one other Anonymous-related Twitter account apologized and suggested it had been the action of a rogue Anonymous supporter.

Johnson was not available for comment; his outgoing phone message said he was called away on a family emergency.

BART spokesman Jim Allison did not immediately return a call seeking comment from CNET, but told The Huffington Post: "I'm not going to comment on the private life of an employee. But I will say that I condemn anyone who attacks an individual and invades their privacy. This is not only unethical, but illegal."

Updated at 7:33 p.m. PT to correct attribution of comments about who authorized the decision to cut phone service and contact with FCC to Sherwood Wakeman, interim BART general manager, and 5:50 p.m. PT with leak of photos and information of BART spokesman Linton Johnson.