Gentlemen,
The BART Police require the M-Line wireless from the Trans Bay Tube Portal to the Balboa Park Station, to be shut down today between 4pm & 8.
Steve , please help to notify all carriers.

I have spoken to or left a voicemail for most of you. We have been told that we must shut down the DAS system from the Oakland portal to the Balboa St. Station from 4-8 pm. We do not believe that any of the carriers need to do anything, the nodes will be turned down from the Civic Center Headend and then turned back up when given the ok from the BART police.

Current events around the country and the world highlight the urgency and importance of this issue. Growing concern over “flash mob” crimes has led some policymakers to attempt to target communications network for increased scrutiny. In the wake of riots in London, politicians in the United Kingdom have proposed increased governmental surveillance of, access to, and control over social media platforms and other communications media. Such interference with communications has a long history of being used to suppress civil rights protests over a wide variety of traditional and new media, from distributing flyers to television broadcasting.

This tendency, multiplied by the number of state and local agencies willing to exercise control over CMRS, could wreak complete havoc on the reliability of CMRS service by rendering it dependent on the discretion of the most-restrictive authority in any given region. Moreover, inconsistency and unreliability of service would be only two of the many resulting problems. If local government agencies claimed the authority to impede or restrict communications at their own discretion, users’ rights to free speech, just and reasonable access, and emergency services would all be imperiled, subject to local determinations of the relative values of these rights as balanced against the peculiar interests of the restricting authority.

As made plain by the negative ramifications of BART’s alternative proposal, statutes exist – and have been upheld by the courts – to prevent actions like BART’s for good reason. When local and state agencies determine a need to restrict communications, they must work with local public utilities or communications agencies and the Commission pursuant to recognized processes. It is untenable legally and practically to allow the whim of any person or agency that has access to network hardware to dictate who is entitled to access communications services and when.

BART’s past shutdown of CMRS, and its apparent plans for similar shutdowns in the future, raise grave concerns. More troubling, other local agencies may use similar shutdowns of CMRS networks in the future--potentially disrupitng access to communications relating to public safety and protected speech. For the above-mentioned reasons, the Commission should issue a declaratory ruling clarifying that such shutdowns by local governments violate the Act.

In Pike v. Southern Bell Tel. &Telegraph Co., 81 So.2d 254 (Ala. 1955), Mr. Connor, in his capacity as Commissioner of Public Safety for the City of Birmingham, ordered Southern Bell to remove the telephone of one Louis Pike, described by Mr. Connor as “a negro” of “questionable character” alleged by Mr. Connor to be a “well-known lottery operator in the city” and to be using his phone for unspecified “illegal purposes.” Reviewing cases from other jurisdictions (including People v. Brophy), the Alabama Supreme Court found that the right of every citizen to use a phone was guaranteed by federal law and could not be deprived without due process.  As the Court observed:

The present tendency and drift towards the Police State gives all free Americans pause.  The unconstitutional and extra-judicial enlargement of coercive governmental power is a frightening and cancerous growth on our body politic.  Once we assumed axiomatic that a citizen was presumed innocent until proved guilty.  The tendency of governments to shift the burden of proof to citizens to prove their innocence is indefensible and intolerable.

We are not able to glean from the bare conclusions set up in the letter of the Commissioner, whether it is claimed that the “illegal” use of the telephone was by the appellant, her husband, or a total stranger.  From aught that was alleged in the plea, except for the conclusion of the Commissioner, no “illegal” use of any type was made of this telephone by any one.

The notice alleged to have been received by the Telephone Company was couched in the terms of a direct order from the Commissioner of Public Safety.  What is the source of Mr. Connor’s authority to issue such an order?  We know of none.  And we hold that none exists.

If we took a contrary view, it would naturally flow and follow that the telephone company would be justified in acting on the notice of any over-zealous law enforcement official who, without evidence, and on mere suspicion, is impressed with the bad character or occupation of a particular telephone subscriber. The letter from Commissioner Connor set up in the plea is no defense.  It is the Telephone Company’s burden to show that the use being made of the telephone did, in fact, justify its removal.

These depredations of a subscriber’s legal right to telephone service constitute a denial of due process guaranteed by the Constitution of 1901, art. 1, § 6.  The gratuitous and arbitrary action of a police official is no justification for an abridgment of this right.  To hold that the Telephone Company is justified in discontinuing service by “order” of a police official would require judicial recognition of a police power which does not exist.  The bald assertion of an executive officer, be he the Attorney General of the United States or a constable of some remote beat, cannot be accepted as a substitute for proof in the judicial process.  No presumption arises as to the sufficiency of evidence based on a law enforcement officer’s conclusions.

Similarly, the BART's possession of “intelligence” that individuals may use their mobile phones to coordinate illegal activity does not confer “police power that does not exist.” BART must still go to the California agency with actual jurisdiction, the CPUC, and obtain a legal order authorizing the shut down of cellular service.

As an added precaution, the agency shut off cellphone service on the station's platform. While Alkire said the tactic was an unusual measure, he said it was "a great tool to utilize for this specific purpose" given that the agency was expecting a potentially volatile situation.