However, FCC Chairman Julius Genachowski said that the legal and policy issues raised by the BART incidents in August were “significant and complex” enough that the commission would soon offer “an open, public process” to provide guidance to state and local governments and other agencies on the issue.
BART’s issuance of a new policy follows criticism by free speech rights groups, which had asked the FCC to disallow such wireless shutdowns after the transit district cut off mobile service to quell protests planned over the July shooting death of Charles Blair Hill by BART police.
BART’s spokesman said the move to cut off service followed intelligence that protesters planned to create “mobs” using Twitter to disrupt service at subway stations.
The transit district’s new Cell Service Interruption Policy, issued Dec. 1, describes “extraordinary circumstances” to include but not be limited to strong evidence of “use of cellphones (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; (iii) to facilitate specific plans or attempts to destroy district property or substantially disrupt public transit services.”
“The intent of this cellphone interruption policy is to balance free speech rights with legitimate public safety concerns,” BART Board President Bob Franklin said in a statement. “This policy, with input from the Federal Communications Commission, and the American Civil Liberties Union, will serve as a pioneering model for our nation, as a reference to other public agencies that will inevitably face similar dilemmas in the future.”
Genachowski called BART’s new policy “an important step in responding to legitimate concerns raised by its August 11, 2011, interruption of wireless service. As the policy BART adopted recognizes, communications networks that are open and available are critical to our democracy and economy.”
He said he had “asked commission staff to review these critical issues and consider the constraints that the Communications Act, First Amendment, and other laws and policies place upon potential service interruptions.”
“We will soon announce an open, public process to provide guidance on these issues,” Genachowski said.
With cellular shutdowns more commonly associated with repressive regimes than U.S. state and local governments, it’s not likely that government IT managers would be involved with any such decisions to cut off services.
However, security and privacy researcher Chris Soghoian said via Twitter in September that he found via a Freedom of Information Act request that BART’s shutdown was carried out by email to the transit district’s service providers, raising the issue of the ease with which communications can be brought down.
The Bay Citizen reported that BART decided to shut down services on the fly. A BART board member who has criticized the shutdown, Lynette Sweet, said the emails showed that "not a whole lot of thought went into it," the report said.
The FCC did not reply immediately to request for comment on when the new guidance process would be initiated or completed.
