Special BART Board Meeting on Mobile Phone Service Interruption of August 11th

I spoke at a special BART Board meeting this morning about their cutting of cellphone service during a protest. I thought that the board actually seemed open and interested in public input, in contrast to most public hearings I’ve been to. The President of the Board, Bob Franklin, actually came up to me briefly afterwards and thanked me for my attitude – I had said in my comment that I was taking the Board at their word and meeting in this “appropriate” forum for dialogue before engaging in protest. The meeting did, actually, feel like part of a dialogue.

I came out strongly against the action and in favor of free speech, and pointed out that it took a riot in January 2009 to get Mehserle arrested. One might blame the immaturity of the rioters, but it would be more instructive to consider the deafness of the power structure.

The opposing arguments seemed to center around the safety narrative that BART has constructed, and to my mind missed the point completely. BART staff claimed that cutting cellphone service was made to decrease the safety risks of the protest, but it seems that other aspects of the protest created risks. Board member Tom Radulovich pointed out that people were conflating the issue of the safety of the protest and the issue of the cellphone service interruption.

One of the best comments came from Edward Hasbrouck of The Identity Project (PapersPlease.org). As he pointed out, the BART staff (and/or board) should not be deciding when to cut service in a case like this – they should go before a judge and get a cort order. Instead they made a “vigilante” administrative decision, and that is just not kosher.

What is “imminent”?

Overall, much was made of the quote in the ACLU letter (I need a link) from relevant case law about inciting “imminent” lawlessness. Much hangs on the definition of “imminent” – in particular Board member Gail Murray seemed swayed by the idea that the action was justified in this way. The evidence suggests, however, that the BART staff would have had plenty of time to contact a judge as Hasbrouck suggests – they made the decision to cut the phone service well ahead of time. The incident on August 11th was not at all similar to the two examples mooted at the meeting (a hostage situation where authorities didn’t want the hostage takers communicating outside, and a bomb that might be detonated by phone).

In general, people seemed in agreement that the discussion was about the policy going forward, and not about the past.

Board members’ positions

See this list of BART Board members.

Sweet seemed very supportive of having a policy that did not allow these kinds of service blocks, and Radulovich was moderately supportive. Keller and Franklin also seemed to lean that way. McPartland (over the phone) and Raburn seemed to oppose that kind of limit, with Blalock moderately opposed, and Murray slightly opposed but mostly undecided. Fang was not present. A couple board members suggested additional signage in BART stations to explain a cellphone service policy.

Unfortunately, this meeting was not very well attended, probably in part because of its time at 9am on a weekday (a point brought up by one commenter, a journalist), on what seemed like short notice. The same commenter also pointed out that the visible police presence was excessive and intimidating (18 cops), which seems unduly provocative given the background of the case.

There will be at least one more meeting before a final decision is made. This meeting was deliberately one in which no decision was made.

Further thoughts

What I didn’t end up saying because of time constraints and to avoid seemed too inflammatory is that I find it hard to see a bright clear line between what BART did and Egypt’s cutting off internet access to try to limit protests and prevent the revolution from succeeding. Obviously, the two examples are vastly different in scale, but ultimately I am unconvinced by the safety arguments here, concerned about the lack of a process involving the judicial branch, and worried about the precedent to control the public’s access to communication in a situation that authorities find threatening.


See my followup email to the BART Board.

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