BART Turns Off Mobile Phone Service At Station Because It Doesn't Want Protestors To Communicate

from the really-now? dept

With all the talk in the UK from politicians about shutting down mobile messaging services, it's worth pointing out that it apparently takes much less to shut down mobile service in the US at times. Jacob Appelbaum points out that BART -- the Bay Area Rapid Transit train system here in the California Bay Area -- apparently shut down all cell service at a station under the (false, as it turns out) belief that protesters were going to show up there:
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.
That's really quite incredible, and I'm at a loss to see how that could be allowed. Because BART feared people protesting it literally shut down mobile phone service at its station? Since this particular station is underground, it has special equipment as regular cell towers don't reach the station. However, that shouldn't give BART officials the right to just turn off the service because they're unhappy that people might protest.


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    Anonymous Coward, Aug 12th, 2011 @ 3:03pm

    And people wonder why others are afraid of an ever forming police state............

     

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      Anonymous Coward, Aug 12th, 2011 @ 3:11pm

      Re:

      It's been around and fully formed for decades. It's just now rearing it's ugly head openly instead of remaining covert.

       

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        Greevar (profile), Aug 12th, 2011 @ 5:56pm

        Re: Re:

        It's more like we're more aware of it due to being more connected than ever before. It's like the blind getting their sight back.

         

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          Sum One, Aug 14th, 2011 @ 4:09am

          Re: Re: Re:

          You're both right. It's much like a camouflaged animal. It will stay still so long as it feels it hasn't been seen, but the instant that fails, it will spring into action to defend itself from attack.

           

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    jakerome (profile), Aug 12th, 2011 @ 3:09pm

    Hey, the Syrians did it first!

    So did the Egyptians, the Chinese and many other nations. How are we going to maintain our status as the leading nation in the world if we refuse to employ the same tools of state censorship that have proven so ineffective for totalitarian regimes around the world?

     

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    jakerome (profile), Aug 12th, 2011 @ 3:15pm

    Disturbing comments

    Yikes. I kid above, but apparently there are at least some Americans that want to end freedom of assembly.

    "I don’t like protesters. I hope they will deserve hell as a heavy price to pay for all the media garbage they are promoting. Cowardly protesters are just a menace to society and their act of disobedience will not be tolerated. I would like it when Uncle Sam makes protesting an illegal activity worthy of a lengthy jail sentence. Protesting is as counterproductive since it can contribute to a full scale riot similar to the one in London. I think there should be a law against all form of protests because a single protest can lead to a violent confrontation with the police who are trying to control the disturbance before it becomes completely unmanageable."

     

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    Jeff, Aug 12th, 2011 @ 3:16pm

    Fuck this

    So, we've got the right to assembly, but only if we use a fucking megaphone to get the assembly going? I'm going to spend a lot of money on guns and bullets at a gun show this weekend.

     

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      PRMan, Aug 12th, 2011 @ 3:34pm

      Re: Fuck this

      "but only if we use a fucking megaphone to get the assembly going? "

      Silly man. You can't do that, you'll violate the maximum decibel laws...

       

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        Anonymous MAFIAA, Aug 13th, 2011 @ 5:19am

        Re: Re: Fuck this

        "but only if we use a fucking megaphone to get the assembly going? "

        Silly man. You can't do that, you'll violate the maximum decibel laws...



        Sorry, but that would be a public performance and we will have to have our attorneys contact you for the relevant fees...

         

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    Anonymous Coward, Aug 12th, 2011 @ 3:35pm

    DARPA Contract Opportunity

    DARPA Contract Opportunity

    Man-portable cell repeater station for tactical use in underground tunnels.

     

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    Harrekki (profile), Aug 12th, 2011 @ 3:39pm

    it might be illegal

    While I know this is just a switch on their board to turn off the cell service, You cannot have a device that does this in the US. i think such a device or interruption is a federal offence. if you cannot create a "cell free zone" with a device, how is it legal to turn off expected service?

     

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      TriZz (profile), Aug 12th, 2011 @ 3:50pm

      Re: it might be illegal

      That's what I was thinking...but if it's their equipment to provide a service for their users...then I don't see how it could be illegal for them to turn it off. I think when you block the signal, it's actually messing with the carrier's signal.

       

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      Chris, Aug 12th, 2011 @ 4:10pm

      Re: it might be illegal

      Its illegal to use a signal blocker... but in underground BART stations they use repeaters. So they just turn off the repeaters... not illegal.

       

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        Anonymous Coward, Aug 12th, 2011 @ 4:23pm

        Re: Re: it might be illegal

        Until actually somebody dies.

         

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          JMT, Aug 12th, 2011 @ 6:32pm

          Re: Re: Re: it might be illegal

          That used to happen before cell phones were invented y'know.

           

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            Prisoner 201, Aug 13th, 2011 @ 12:23am

            Re: Re: Re: Re: it might be illegal

            Well, that was also before we had the tradition to sue at the drop of a hat, and win astronomical damages.

            Do you really think they would get away unscathed if someone died because they could not call an ambulance?

             

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              Anonymous Coward, Aug 13th, 2011 @ 6:18pm

              Re: Re: Re: Re: Re: it might be illegal

              The courtesy phones were available. You know, the things people used before cell phones? You know you can call 911 from landlines, right?

               

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    out_of_the_blue, Aug 12th, 2011 @ 3:40pm

    "shouldn't give BART officials the right to just turn off the service because they're unhappy that"

    Mike, AFTER you've lectured me on using exact terms, I'm going tell you to LEARN THE DIFFERENCE BETWEEN "RIGHT" AND "POWER".

    BART does NOT have the right to, only the power. I'm sure you'd find that it's another unacccountable quasi-gov't corporation. In any case, you'll find that you've no way to even complain, let alone sue, that'd just be throwing money away. You're just one person against a giant corporation, regardless that probably everyone in the city feels the way you do: concentrated power ALWAYS trumps the general interest.

    So what are you going to do when corporations and gov't are both out of control and in cahoots? YELL LIKE HELL in no uncertain terms, and don't accept their terminonolgy, else you're sure to lose.

    You're no firebrand revolutionary, Mike. I wouldn't follow you into a doughnut shop.

     

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      JMT, Aug 12th, 2011 @ 6:33pm

      Re: "shouldn't give BART officials the right to just turn off the service because they're unhappy that"

      "I wouldn't follow you into a doughnut shop."

      And for that I'm sure he's profoundly thankful.

       

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    Bushi, Aug 12th, 2011 @ 3:41pm

    No surprise

    Not really a shocker but super disappointing. The issue is that BARTs stuff is privately owned so they can turn it off whenever they want (never mind the unintended consequences, and lawsuit risk from them). For that matter cel towers are private too, so outside of your tos, they can pretty much shut them down or move them or whatever they like at any time as as a private provider. They can also be the tools of government any time they like as AT&T has demonstrated for years with the NSA free pass wide net tapping.

    *shrug* until we drive true accountability from politicians this is what we get.

     

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      bjupton, Aug 12th, 2011 @ 3:55pm

      Re: No surprise

      "The San Francisco Bay Area Rapid Transit District is a special governmental agency created by the State of California consisting of Alameda County, Contra Costa County, and the City and County of San Francisco."

      From wikipedia. BART is a governmental agency.

       

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        Anonymous Coward, Aug 17th, 2011 @ 12:16pm

        Re: Re: No surprise

        wow seriously?! wikipedia? that's as reliable as saying "timmy next door said so"... that's why accredited colleges won't let you use wikipedia as a source because the information is largely unreliable and biased as well.

         

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      btr1701 (profile), Aug 12th, 2011 @ 4:44pm

      Re: No surprise

      > The issue is that BARTs stuff is privately owned

      How is BART's equipment privately owned when BART itself is a public entity?

       

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    Hugh Mann (profile), Aug 12th, 2011 @ 3:46pm

    Having the right to assemble and protest doesn't mean . . .

    . . . that anybody needs to act affirmatively to faciliate your exercise of that right.

    Turning off cell phone repeaters in stations doesn't prevent anybody from protesting. You still have exactly the same right to show up there to chant slogans and carry a sign as you did before. You can still take whatever photos/videos you could before (even with your cell phone), and can still send them out via your favorite social media service. Just, apparently, not from right there on the platform. Seems like plenty of people were able to express their views just fine - even from train stations - before cell phones came along, so it's not clear to me how turning off the repeaters is an abridgement of First Amendment rights.

    Now, that doesn't mean I think BART is acting wisely. That's a completely different issue.

    HM

     

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      Mike Masnick (profile), Aug 12th, 2011 @ 3:57pm

      Re: Having the right to assemble and protest doesn't mean . . .

      . . . that anybody needs to act affirmatively to faciliate your exercise of that right.


      I love this. Hugh actually seems to believe that doing nothing is "acting affirmatively." Perhaps you missed the part in which the only "affirmative" action was them shutting down the network.

       

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        Hugh Mann (profile), Aug 12th, 2011 @ 10:50pm

        Re: Re: Having the right to assemble and protest doesn't mean . . .

        Your response implies that, once having provided cell phone repeaters, BART can then NEVER turn them off or let them fall out of repair, because it would infringe the free speech rights of BART patrons.

        That just doesn't make sense. By "acting affirmatively", I am referring to your apparent belief that BART is now OBLIGATED to provide and maintain cell phone repeaters.

        HM

         

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          Mike Masnick (profile), Aug 12th, 2011 @ 11:17pm

          Re: Re: Re: Having the right to assemble and protest doesn't mean . . .

          Your response implies that, once having provided cell phone repeaters, BART can then NEVER turn them off or let them fall out of repair, because it would infringe the free speech rights of BART patrons.

          Not at all. The crux of a First Amendment violation is if the action is content neutral. Turning off for repairs is obviously content neutral. Here, BART has specifically stated that they turned it off to stop a form of speech.

          That's a First Amendment violation.

           

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            Anonymous Coward, Aug 13th, 2011 @ 6:03am

            Re: Re: Re: Re: Having the right to assemble and protest doesn't mean . . .

            The crux of a First Amendment violation is if the action is content neutral.


            Not in a non-public forum.

            Perry Ed Assn v Perry Local Educators' Assn (Perry):

            Public property which is not by tradition or designation a forum for public communication is governed by different standards. We have recognized that the "First Amendment does not guarantee access to property simply because it is owned or controlled by the government." In addition to time, place, and manner regulations, the State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view. As we have stated on several occasions, “[t]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.”

             . . . .

            Implicit in the concept of the nonpublic forum is the right to make distinctions in access on the basis of subject matter and speaker identity. These distinctions may be impermissible in a public forum but are inherent and inescapable in the process of limiting a nonpublic forum to activities compatible with the intended purpose of the property.The touchstone for evaluating these distinctions is whether they are reasonable in light of the purpose which the forum at issue serves.


            (Citations and internal quotes removed.)

            The headnote summarizes this as, “With respect to public property that is not by tradition or government designation a forum for public communication, a State may reserve the use of the property for its intended purposes, communicative or otherwise, as long as a regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view.”

            In other words, in a non-public forum, viewpoint discrimination is still prohibited, but content-based regulation is subject to merely rational-basis review.

             

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            Anonymous Coward, Aug 17th, 2011 @ 12:21pm

            Re: Re: Re: Re: Having the right to assemble and protest doesn't mean . . .

            hello! to stop the danger that was highly likely from the protest! if someone gets hurt on BART (privately owned) property guess who flips the bill... BART! Why would they want to endanger their passengers or allow a situation in which their passengers could be in danger. That's the whole point of security and police. they are there to look after the safety of the people on the property.

             

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      Chris Rhodes (profile), Aug 12th, 2011 @ 6:23pm

      Re: Having the right to assemble and protest doesn't mean . . .

      If they were a private entity on private property, I'd say they could do whatever they wanted with their repeaters, even if they were dicks for doing so.

      But having a government entity disable them strikes me as cause for a possible lawsuit, especially if there is any evidence that the particular content of the planned protest was what caused them to to disable them. That's a big no-no in first amendment cases.

       

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        Anonymous Coward, Aug 12th, 2011 @ 6:29pm

        Re: Re: Having the right to assemble and protest doesn't mean . . .

        ...a possible lawsuit...


        By whom?

        Odds of success seem low. And I can think of better fights to spend scarce resources on. Ones with better chances.

         

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          Chris Rhodes (profile), Aug 12th, 2011 @ 8:42pm

          Re: Re: Re: Having the right to assemble and protest doesn't mean . . .

          By whom?

          By anyone who was there to demonstrate that couldn't use their phone.

          And I can think of better fights to spend scarce resources on.

          Yeah, free speech is one of those meaningless rights. We should be suing for more important things, like who's selling red-soled shoes in violation of a bogus trademark!

           

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            Anonymous Coward, Aug 14th, 2011 @ 6:19am

            Re: Re: Re: Re: Having the right to assemble and protest doesn't mean . . .

            Yeah, free speech is one of those meaningless rights.


            Let's assume that I have a Stalin-esque power to allocate the people's resources at whim, without transaction costs. In this case, I have the choice between funding “courts and lawyers” or funding “research scientists and engineers”.

            Rather than funding a lawsuit, I'd rather take the same chunk of the people's valuable resources and pour them into a DARPA research contract:

            Man-portable cellular repeater for tactical use in underground tunnels.

            I'd say that both the lawsuit and the research have about the same odds of complete sucess. The lawsuit probably runs into rational-basis, and the research probably runs into nature. Potential payoff, well, on the one hand some judge in a black robe says the people have the power to use their cell phones on BART platforms. On the other hand, some scientist in a white laboratory smock says the people have the power to use their cell phones on BART platforms.

             

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    qhartman (profile), Aug 12th, 2011 @ 3:47pm

    Well, yes and no...

    OK, so I rarely am on the opposing side of articles / comments here, but this time it looks like i am.

    It's possible (even likely, and the rest of my opinion is based heavily on that assumption)that BART owns the equipment that is making cell phone communication possible on the subway. They are well within their rights to shut that gear down for whatever reason they like. Although BART (like many transit authorities) is loosely tied to the government, they aren't _really_ a government organization, so this isn't "state censorship" as suggested by others above. Even if they are a bona-fide government org, this "censorship" would be easy to avoid, make your calls from outside...

    In any case, they spend money (yes, a lot of money, DAS systems are really expensive, and this is probably a DAS) to provide that service as a convenience for their riders. If they have reason to believe that the availability of that service is going to make a potentially unsafe situation worse, disabling it temporarily makes sense, for a multitude of reasons.

    This isn't a case of shutting down service for huge numbers of people in large geographic areas (like in the UK), it's shutting it down for people in that particular subway station, where they wouldn't have service ANYWAY unless BART hadn't taken the extra effort to make it available.

    Granted, BART does have a sworn police service, which blurs the lines a bit, but this still isn't really comparable to the UK situation, the scope of it just doesn't fit. If they have prior knowledge of an event that is likely to jeopardize the safety of innocent bystanders, they are not only within their rights to take reasonable steps to counter it, they have a responsibility to do so. Based (solely) on the linked article, it sounds like the steps they took were reasonable. Given the close quarters of a subway station and the number of people involved, and the proximity to trains, there is a high likelihood that a protest there could get ugly fast.

    Finally, if we're going to be drawing parallels to the situation in the UK, let's also look at the other side. As far as I can tell, the vast majority of the people involved in the riots there seem to have very little interest in creating a positive political change. Based on the coverage I've seen from MANY sources, it looks like they are just using that shooting as an excuse to go out and create some mayhem. A PROTEST is one thing, a RIOT is something else entirely. Given that context, it seems that the intent of the people promoting the protests at the BART station COULD HAVE BEEN similar.

     

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      Nathan F (profile), Aug 12th, 2011 @ 3:59pm

      Re: Well, yes and no...

      It started out as a protest (the UK thing..) of family members and friends. Then the hooligans took it to the next level.

       

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        qhartman (profile), Aug 12th, 2011 @ 4:31pm

        Re: Re: Well, yes and no...

        Absolutely, and those hooligans make up the majority of the people out there. Odds are that a similar make up of hooligans vs. legitimate protesters would have shown up to the station.

        In fact, since the whole thing didn't end up materializing, it lends credence to the idea that the organizers weren't interested in social change. Once they heard there was a response ready and waiting, they decided not to show up. It's no fun using crappy situation as cover for being a self-absorbed douche who likes to cause people grief if you get arrested for it. If you really are trying to draw attention to an issue to affect a positive change, a police presence (assuming the police mind their Ps&Qs as well) is actually a GOOD thing since it almost guarantees media coverage.

         

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      Anonymous Coward, Aug 12th, 2011 @ 4:06pm

      Re: Well, yes and no...

      I'm with you. These people want to protest over a perceived wrong-doing (from what I can tell they just want to piss and moan over what is actually a reasonable outcome of a shitty situation. A guy weilding a knife and trying to cut people is gonna get shot, cops or no). And these people are going out of their way to disrupt thousands of people who have nothing to do with it.

      Having cellphone service downstairs is a PRIVELEGE, and I completely support BART utilizing what resources it could to prevent a vocal minority from taking hostage of thousands for their own political agendas.

      I'm as outraged as the next guy over the Oscar Grant thing, but they're using this latest shooting as an excuse to be shitty people and take it out on other unwilling participants.

      Hell, I'm liable to shoot a protester if they feel the need to keep me in SF when all I want to do is go home after a long day at work.

       

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        Michael, Aug 14th, 2011 @ 6:05pm

        Re: Re: Well, yes and no...

        Well shooting someone for delaying you sure sounds reasonable... you don't sound like someone who will be out of prison very long.

         

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    Anonymous Coward, Aug 12th, 2011 @ 4:04pm

    Dear Bart:

    We're going to protest in every station, for the next decade.

    Signed,
    Loving Customers

     

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    Scott Allison, Aug 12th, 2011 @ 4:28pm

    This is wrong

    I'm actually in favour of restricting some services to curtail civil unrest, if used sparingly, but this is just stupid:

    How is turning off repeaters in a station going to prevent protestors turning up at that station? Once they are there they don't need cell service!!

     

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      qhartman (profile), Aug 12th, 2011 @ 4:34pm

      Re: This is wrong

      It won't prevent them from turning up, but it will prevent them from contacting their friends who are only interested in being there if the scene starts getting out of hand. Once those people show up, the trend towards things getting totally fscked will accelerate.

       

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      Anonymous Coward, Aug 12th, 2011 @ 4:37pm

      Re: This is wrong

      Once they are there they don't need cell service!!


      It isn't enought to just shoot the video, you have to get the video out to the audience.

      Once you get arrested, then the cops take your recording device and erase incriminating video. So you need to stream the video out before you're in the plastic cuffs.

       

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        abc gum, Aug 13th, 2011 @ 7:04am

        Re: Re: This is wrong

        "Once you get arrested, then the cops take your recording device and erase incriminating video. So you need to stream the video out before you're in the plastic cuffs."

        Or you could remove the SD and hide it your mouth

         

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    btr1701 (profile), Aug 12th, 2011 @ 4:41pm

    Jamming?

    So it's such an egregious offense to freedom and liberty that the government itself can't even get permission to jam cell phones in state and federal penitentiaries, but a city-run subway can disable service altogether at its whim?

    How the hell does that work?

     

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    Jeffrey Nonken (profile), Aug 12th, 2011 @ 4:45pm

    Oh come on, Mike. I can't believe you're putting this spin on it.

    "...apparently shut down all cell service at a station under the (false, as it turns out) belief that protesters were going to show up there..."

    Obviously the protesters didn't show up because of the agency's wise, proactive precaution of shutting off the cell repeaters. I'm astonished that even you can see it any other way.

    Elephant repellent!

     

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    sjc, Aug 12th, 2011 @ 5:14pm

    Lessons about the quashing political protests by blocking access are easily found in recent US history. While mayor of NYC, Rudolph Giuliani repeatedly shutdown access to political events. In 1998 he shut down subway access to an African American neighborhood when a peaceful protest march was planned. That same year he prevented Taxicabs from crossing the bridges into Manhattan to prevent access to a protest against his policies.

     

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    abc gum, Aug 12th, 2011 @ 5:53pm

    I guess they would stop you from recording murders if they could.

     

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    Anonymous Coward, Aug 12th, 2011 @ 6:17pm

    If they we're in a brown country..

    ...the media and western governments would be all up in arms about it. But I guess its fine in a 'democracy'

     

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    gina, Aug 12th, 2011 @ 6:41pm

    "expressive activities" banned

    It goes beyond turning off the cell phone capabilities. A BART official was quoted as saying:

    "No person shall conduct or participate in assemblies or demonstrations or engage in other expressive activities in the paid areas of BART stations, including BART cars and trains and BART station platforms."

    I think talking, and holding signs peaceably are forms of "expressive activities" which they have banned.

     

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      Anonymous Coward, Aug 12th, 2011 @ 6:48pm

      Re: "expressive activities" banned

      ... "expressive activities" which they have banned.


      First amendment forum analysis:
       . . . .

      Finally, every forum that is not a traditional or limited public forum is a nonpublic forum. Examples of nonpublic forums are street-light posts, prisons, military bases, polling places, a school district's internal mail system and airport terminals. The Court grants states much greater latitude in regulating nonpublic forums. In addition to applying time, place and manner regulations, the state may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view.

       . . . .

       

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      Anonymous Coward, Aug 12th, 2011 @ 11:35pm

      Re: "expressive activities" banned

      Crud, so much for getting Improv Everywhere over here.

       

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      abc gum, Aug 13th, 2011 @ 7:06am

      Re: "expressive activities" banned

      "No person shall conduct or participate in assemblies or demonstrations or engage in other expressive activities in the paid areas of BART stations, including BART cars and trains and BART station platforms."

      You mean people are not allowed to dance in a BART station?

       

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    colony (profile), Aug 12th, 2011 @ 6:58pm

    typical

    it seems that antone who can't just sit down and have a rational, fair and frank debate just tries to shut the opposition up these days. idiocracy here we come.

     

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    Anonymous Coward, Aug 12th, 2011 @ 8:21pm

    Let's get something straight here. The protesters intended to have their protest ON THE TRAIN PLATFORMS. BART explicitly prohibits this kind of activity on the train platforms because it poses a huge risk to innocent people (third rail and high speed trains anyone?). Protesters are more than welcome to assemble in the station above ground, and they do so just about every day, peacefully.

    Every person that says the cell repeater shutdown was uncalled for clearly doesn't know shit about this situation. The last "peaceful" BART protest wasn't peaceful and plenty of crimes were committed. Cellphone service was used by criminal perpetrators to avoid the police, plain and simple.

    Don't be fooled. Protest organizers made it clear in days prior that they would use cellphones to avoid police and prosecution for crimes the non-peaceful protesters commit. The repeaters were shut down to eliminate this possibility, not to disrupt the congregation of protest.

    First amendment violation? Bullshit. BART is and was never under any obligation to provide cell service on their trains. It is a free service they provide.

    Have an emergency call to make? There were police everywhere one could have contacted.

    Have to post your "police hate-crime" video online? Exit the station, jackass.

    Despite all this, I applaud BART for the actions they took to prevent non-peaceful protesters from avoiding police, but I say a hearty "FUCK YOU" for the clandestine manner in which they did it.

     

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    Anonymous Coward, Aug 12th, 2011 @ 9:15pm

    As far as i know interfering with a 911 call is a felony...

     

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    harbingerofdoom (profile), Aug 12th, 2011 @ 9:16pm

    hrm.

    berkley liberalism vs. barts (apparent) conservatism.

    may want to make some popcorn for this one...might get interesting.

     

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    Dave, Aug 12th, 2011 @ 9:28pm

    Who cares, just adjust to not having cell phone a few minutes

    So our cell phones were turned off for awhile, I didn't care. I don't mind that there are a million cameras watching us either, I'm not doing anything illegal. I would rather have officers around me than have my cell phone operational anyday. I wish this could happen everyday when I ride Bart. I hope the Bart protestors stay in the parking lots and not in the platforms. My hat's off to the Bart police for their ingenuity, keep up the good work.

     

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    Pro Se Guy, Aug 12th, 2011 @ 9:28pm

    As someone who has won Pro Se First Amendment lawsuits against state agencies where I live, I can speak with some confidence when I say that the activities of BART in shutting down all cell service in terminal areas because of a possible protest would likely be held to be unlawful in a lawsuit, for a number of reasons.

    First, let's get it clear that BART is a government agency, meaning they are limited in what they can do by the U.S. and California Constitutions.

    As someone already pointed out, the paid area of a terminal is not a "traditional public forum" (think a park or sidewalk), so state officials have considerably more leeway in ensuring that area is used for its intended purpose. But the Constitution doesn't evaporate simply because the government operates a paid service. When dealing with expressive activities in a non-traditional forum, they have to be "reasonable" in their policies and actions. From what's been publicly discussed so far, BART officials had little to no knowledge of the form or scale of possible protests or any danger they presented. That hurts their chances of successfully claiming the response of shutting off all cell phone service to EVERYONE IN THE PAID AREA was a "reasonable" response. This wasn't a situation where they shut down cell service in a small area to stop an ongoing riot; this was a POTENTIAL protest and they wanted to stop protesters from gathering AT ALL. Their idiotic attempt to impose a "no expressive activities at all" rule will do even more damage to them. No court applying the law properly would find that to be "reasonable" and it would be evidence that the people involved in this fiasco disregarded (or had little understanding of) the First Amendment and the limits on their authority.

    There are a lot of other constitutional issues, too. Due Process-wise, BART deprived hundreds (at least) of innocent people of access to services lawfully purchased from private companies, reducing the value of those services (deprivation of property without Due Process). There are also contract problems: Riders paid fares expecting cell phone service in the paid areas, but didn't receive what they paid for. With both of these issues, there is no comparison between what BART did and normal loss of signal. BART has built a network of cell signal repeaters and people rely on it for a wide variety of constitutionally-protected activities. Network failures are one thing; intentional disruption of service by government employees is quite another.

    There also are probably some statutory issues. There are various laws on the books prohibiting interfering with communication services, and no sane individual would think that shutting off a signal is NOT interfering with service. It's possible that BART violated one or more of these laws. (I don't know though, it's not an area I'm familiar with.)

    Finally, there are plenty of sound policy reasons why this type of thing should result in severe penalties. The biggest is that approving of it could set a dangerous precedent. It's no great leap from shutting down transceivers you control to asking a private company to do the same. If this happened in a major metropolitan area it would have far greater effects on the public. Fortunately there was no emergency in the affected area, because it had no 911 service thanks to BART. (Has BART ever heard of unintended consequences?) There's also the need to prevent the government from getting an additional power to deter speech: If protesters know that they will anger huge groups of people by speaking out because the government will shut off EVERYONE's service to shut them up, they will be deterred from speaking out; this "chilling effect" itself would be a violation of the First Amendment.

    Personally, I wish I were there because I'd be at the courthouse door as soon as I finished drafting my papers. Nobody will win a lot of money from a lawsuit over this, but a ruling that it was unconstitutional is worth much much more. I really hope someone challenges this, because this type of government conduct is a deadly threat to liberty as we grow more connected every day. I'm hopeful that because this happened in famously-liberal California, someone will have the courage to challenge it.

     

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      Mr. x, Aug 13th, 2011 @ 1:06am

      Response to: Pro Se Guy on Aug 12th, 2011 @ 9:28pm

      The act of delaying trains won't anger the group of people trying to ride BART?

      But denying that same group of people cell phone service will anger them?

       

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      Mr. x, Aug 13th, 2011 @ 1:06am

      Response to: Pro Se Guy on Aug 12th, 2011 @ 9:28pm

      The act of delaying trains won't anger the group of people trying to ride BART?

      But denying that same group of people cell phone service will anger them?

       

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    Nethos (profile), Aug 13th, 2011 @ 12:34am

    the fence...

    While I am usually against situations where a government or organization blocks communication in an attempt to stop speech they do not like, I feel that the devil is in the details in this case. If the cell blackout was used because officials did not want the protestor's message to be heard, then I entirely agree that they went too far. However, with a lot of protests and demonstrations there is an increased chance of violence breaking out, be it from the protestors or even other bystanders, and in a place such as an underground train station which is both full of people and rather closed off any violence can quickly escalate. So, if officials did in fact have good reason to believe that the protest could turn violent, then I believe that turning off cell communication was an effective preventative measure to ensure the safety of bystanders (I would much rather miss a text message or two than become involved in a violent protest).

    In summary, if the officials turned off cell communications because it was believed that the protest in question would likely lead to violence, then I believe it was a rather clever idea that had minimal impact on the public (as opposed to other alternatives such as shutting down the station or posting armed guards or something). However, if this was merely an attempt to prevent the message from being heard, then this was a completely condemnable act.

     

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    Anonymous Coward, Aug 13th, 2011 @ 6:31am

    Your Tax Dollars at work!

     

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    abc gum, Aug 13th, 2011 @ 7:12am

    The obviously correct response to protests of draconian measures is additional draconian measures - sheeesh, why can you people not see the truthiness of this???

     

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    Pro Se Guy, Aug 13th, 2011 @ 1:53pm

    There are a number of issues here. How much info did BART have about the protests and the people they thought might get involved? How many people were going to show up? At what level was this decision made and did they consult with BART attorneys? Did they consult with the phone companies? How did they address the possibility for 911 emergencies? What alternatives were there? Is there an official policy on potentially-dangerous situations in general, and protected protests specifically? Have there been other protests they've allowed? What interest did BART have in suppressing this particular protest? What are the broader policy issues involved in allowing or forbidding this practice?

    All these issues, and many more, come into play in deciding whether or not BART acted constitutionally. While it is presumed that employees of the government intend to act within the limits of their authority, the proper place to decide whether or not they've STAYED within the limits of their authority is a court.

     

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      abc gum, Aug 13th, 2011 @ 2:05pm

      Re:

      "the proper place to decide whether or not they've STAYED within the limits of their authority is a court."

      In other words ... the court of public opinion is not allowed to speak out on these matters, it needs to shut up and wait for the system to correct itself.

       

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    Pro Se Guy, Aug 13th, 2011 @ 3:26pm

    "In other words ... the court of public opinion is not allowed to speak out on these matters, it needs to shut up and wait for the system to correct itself."

    The court of public opinion is free to decide this matter all on its own--especially in California where they have a referendum legislation system--by pushing through a law condemning or expressly prohibiting this behavior if it wants to. In fact, that is a response I would strongly support.

    Unless that happens though, this needs to get into a real court. Because the court of public opinion can't issue an injunction or a declaratory judgment. And that's what we need if we can't get a new law passed to help.

     

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    Pro Se Guy, Aug 13th, 2011 @ 3:39pm

    I was also trying to emphasize that BART must be given a fair opportunity to defend its actions. Unfortunately, fairness and neutrality are things the court of public opinion sometimes seriously neglects.

     

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      abc gum, Aug 13th, 2011 @ 7:44pm

      Re:

      "I was also trying to emphasize that BART must be given a fair opportunity to defend its actions. Unfortunately, fairness and neutrality are things the court of public opinion sometimes seriously neglects."

      Perhaps it is a lack of fairness and neutrality which fuels the protests.

       

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    Anonymous Coward, Aug 13th, 2011 @ 8:26pm

    Part of the reason the FCC wrongfully monopolized public airwaves into the hands of private corporations is to limit efficient public communication. This monopoly power, and the restrictions on non-licensed bandwidth, makes it more difficult for the public to organized and resist corrupt corporate and governmental behavior, yet alone to be aware of it. and, for the most part, it seems to have worked. That's partly why IP laws have gotten completely out of control with little to no resistance over the years.

    ABOLISH THE FCC!!!! ABOLISH IP!!!

     

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      abc gum, Aug 14th, 2011 @ 7:34am

      Re:

      "Part of the reason the FCC wrongfully monopolized public airwaves into the hands of private corporations is to limit efficient public communication."

      This may be true, however money has a lot to do with it.

       

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    Anonymous Coward, Aug 14th, 2011 @ 3:46am

    phone jammer

    google:- y a p p e r z a p p e r

     

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    ipgrunt (profile), Aug 14th, 2011 @ 11:16am

    Provide transportation or serve as a meeting place?

    Perhaps I misunderstand but I'm working under the assumption that BART's mandate is to provide public transportation, and any effort BART makes to assure continued service to the public would serve that mandate. In my experience, the court of public opinion is a ruse to lend legitimacy to mob mentality. More often than not, the mob tramples the civil rights of an innocent majority of bystanders. It follows that this kind of "protest" is an attempt by an interested few to disrupt the day-to-day activities of the indifferent many. BART seems to clearly understand their business.

     

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      Hugh Mann (profile), Aug 14th, 2011 @ 12:16pm

      Re: Provide transportation or serve as a meeting place?

      Spot on.

      HM

       

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      Hugh Mann (profile), Aug 14th, 2011 @ 12:19pm

      Re: Provide transportation or serve as a meeting place?

      Maybe Anonymous also has a First Amendment right to engage in their disruptive activities:

      http://news.cnet.com/8301-1023_3-20092160-93/anonymous-plans-bart-web-site-attack-pro test/?part=rss&subj=news&tag=2547-1_3-0-20

      HM

       

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      abc gum, Aug 14th, 2011 @ 7:33pm

      Re: Provide transportation or serve as a meeting place?

      "BART's mandate is to provide public transportation"

      Does their mandate also include the termination of your life for no apparent reason?

      On November 5, 2010 Mehserle was sentenced to two years, minus time served. He served his time in the Los Angeles County Jail, occupying a private cell away from other prisoners. He was released on June 13, 2011 and is now on parole.
      http://en.wikipedia.org/wiki/BART_Police_shooting_of_Oscar_Grant

      Wow, two whole years - the poor guy, he thought it was a taser huh.


      "any effort BART makes to assure continued service to the public would serve that mandate."

      Including but not limited to murder.


      "the court of public opinion is a ruse to lend legitimacy to mob mentality"

      Yes, the little people should stfu and take their pittance with out complaint because it could be so much worse.

      "More often than not, the mob tramples the civil rights of an innocent majority of bystanders"

      If by "mob" you mean the fascists, then yes

      "this kind of "protest" is an attempt by an interested few to disrupt the day-to-day activities of the indifferent many"

      Go back to sleep citizen, it will all be over soon. Nothing to see here - move along

       

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    Sandra Brown, Aug 15th, 2011 @ 10:27am

    CELL PHONE PROTECTION FROM DICTATORS

    In an emergency you can use www.democri-c.com

    for the iphone, Ipod and IPAD and

    http://hackerdemia.com/auto-BAHN/android/current/autobahn.apk

    For any Android device.

    They are emergency mobile phone services apps that cannot be shut down by anybody.

    Pass this on...

     

    reply to this | link to this | view in chronology ]


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