BART Board President Rejects Draft Cell-Cutoff Policy as Too Sweeping
BART’s board president said a draft cellphone-cutoff policy from the regional rail agency’s general counsel is overbroad. In an interview Friday, President Bob Franklin of the Bay Area Rapid Transit District Board also said that getting responses from the FCC, the California Public Utilities Commission and the ACLU to a proposed policy probably will delay final action beyond the board’s next meeting, Sept. 22. He had planned to take a vote by then on what are expected to be the first rules on the subject in the U.S. (CD Aug 25 p6). “It’s my intention to wrap this up quickly,” Franklin said, but “because it’s the first policy, I think it’s an opportunity to get it right and serve as a model for other agencies.”
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The prospect of transit interruptions could trigger a cutoff of access to cellular service under a draft by General Counsel Matthew Burrows. “I don’t think that qualifies to cut off cellphone coverage,” Franklin said: “A service disruption could be a 30-second delay on the train. … I think it’s just too vague of a term.”
Under the draft, the district could suspend cellphone access “only when it determines that there is strong evidence of imminent unlawful activity that threatens the safety of District passengers, employees and other members of the public, the destruction of District property, or the substantial disruption of public transit services; that the interruption will reduce the likelihood of such unlawful activity; that such interruption is essential to protect the safety of District passengers, employees and other members of the public, to protect District property or to avoid substantial disruption of public transit services; and that such interruption is narrowly tailored to those areas and time periods necessary to protect against the unlawful activity.”
The proposal gives as examples of grounds “strong evidence of use of cell phones (i) as instrumentalities in explosives; (ii) to facilitate violent criminal activity or endanger District passengers, employees or other members of the public, such as hostage situations; and (iii) to facilitate specific plans or attempts to destroy District property or substantially disrupt public transit services.” The draft was posted last week on Indybay.org, the regional site for the left-leaning Indymedia activist news operation.
Burrows wrote in a cover letter that he was providing “guidelines intended to capture the direction of the Board from the August 24th Special meeting and to facilitate upcoming discussions.” But the provision about service disruptions “appears to be a deviation from what was discussed,” Franklin said. We couldn’t reach Burrows, or the ACLU. Franklin said he doesn’t know how the proposal might be changed before going to the FCC, the CPUC and the ACLU. Board members have said the ACLU’s position will guide their decision. A new Citizens Review Board for the BART police responded to an invitation by the governing board by passing along 12 recommendations for the policy, Franklin said, but he hasn’t seen them yet. The agency wouldn’t give them to us Friday. Before a policy is enacted, the review board will get to look at a proposal and the governing board will take additional public comment, he said.
BART may lack authority to make the policy it produces self-activating, Franklin said. It may turn out to be a guide to seeking permission from the FCC or an injunction from a judge if the agency sees another cutoff as necessary, he said. But Franklin said he doesn’t foresee the tactic being applied again to continuing demonstrations sparked by a killing by BART police, because the protesters have changed their methods. The August cutoff in some San Francisco stations was justified because it followed a dangerous demonstration and forestalled another one that was planned, he said. “It was a one-time tactic that frankly worked.” Franklin said communications and First Amendment lawyers he has spoken with “feel that BART has a good case” to defend its action. He clarified that a PUC hearing this month mentioned by BART’s police chief relates more to officers’ firing their guns on transit platforms than to the cellphone cutoff.