I know I am a little late to the party on the topic of the Bay Area Rapid Transit cell-phone antenna shutoff, but it is one that has stuck in my craw for a while now, especially given the modifications that have come down in recent days.
Unauthorized use of eforce.
It doesn’t make sense on so many levels. They said it needed to be done to stop an organized operation by people looking to chain themselves to trains. If you knew of the plan, what is the purpose in shutting down the cell phones of these people when you could arrest them (which they now say they will do). And if the plan is in place, how does shutting off their cell-phones substantially increase your chances of stopping the plan that is already in place, especially over other methods (like proper screening or arrests).
The FCC has regulations in place stating that an entity can’t interfere with licensed radio communications (47 U.S.C. § 333 : US Code – Section 333: Willful or malicious interference), and hopefully there is more consideration coming for what was a clearly willful violation of that section. For now the FCC is content asking BART to include a provision stating that there are significant risks to interfering with cell phone communications, and that the risk for which they plan to interfere should substantially outweigh the risks from the interference.
So what are the risks of interfering with cell phone communications? There certainly is a case for First Amendment rights being violated. While an argument could be made that it was a time, place, and manner restriction, it doesn’t appear that it meets the burden required. The interference is incredibly overbroad, and comes nowhere close to being able to be considered “narrowly tailored” to stop the possible demonstration.
First Amendment issues aside, there are far more severe consequences to interfering with cell phone communications. A FCC document (http://www.fcc.gov/guides/wireless-911-services) states that 70% of all 911 calls are made from cell phones. Therefore, in order to disrupt communications on a plan that is already planned, BART disabled the ability for U.S. citizens to use their primary mode of emergency response (911). If someone had been injured, what alternative methods would a citizen have to call for emergency response? Or perhaps even more chilling, what if the authorities on site had physically violated the rights of those citizens (not unheard of in recent memory in California, as evidenced by the fact of why this demonstration was planned).
I am terrified of the idea that a municipal body can determine that it is going to shut off my main immediate access to the outside world, without any other clearance than by a designated manager. I am all for allowing government agencies the ability to protect their constituents (and could understand the argument more if the use of cell phones could imminently endanger human lives). But this is completely beyond the pale, and I can see very little demonstrable evidence as to how this course is more effective than an arrest. It certainly skirts or oversteps First Amendment protections, violates a Federal rule, and puts the very public it is meant to protect in jeopardy. Frankly, this is something I would expect out of an autocratic society, not a country that prides itself on freedom and citizen’s rights.