FCC Investigating Whether BART Cell Service Shut Off Was A Violation Of Federal Law
from the and/or-the-first-amendment dept
Late last week, after it came out that BART had decided to shut down mobile phone service in one station because of the threat of a protest (which never actually materialized) many people started questioning the legality of the move. Now comes the word that the FCC is investigating. It will be interesting to see what they have to say. I'm not sure if it actually did violate any specific FCC rules, though I would imagine that the FCC might worry about this kind of thing becoming more common. It seems to me that the First Amendment argument (which I would believe is outside the FCC's purview) is much stronger. Here, an entity acting on behalf of the government shut down a form of communication specifically directed at a form of protest speech in an attempt to block that speech. You can get away with things if they're "content neutral," but in a case where BART officials have flat out admitted that they were targeting speech they didn't like, it seems like there's a strong First Amendment claim, though I'm not sure who would actually bring such a lawsuit.
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Filed Under: bart, free speech, mobile phones, protests, wireless
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They were not targeting speech they didn't like - they were targeting those who were using this technology to spread hateful / illegal speech intended to create disruption and potentially a riot. They are not obliged to participate in their own demise.
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No they were not, BART said the free speech zones were only outside the far gates.
"they were targeting those who were using this technology to spread hateful / illegal speech intended to create disruption and potentially a riot."
To borrow wikipedia thing.... citation needed. When did BART manage to build a working mind reading device that is reliable?
Hateful speech is still allowed in this country so... fail.
The potential of the soccer moms to break into a naked wesson wrestling match in the grocery story is a potential outcome, shall we ban wesson or grocery stores to keep it from happening?
Its a Governmental Company that interrupted communications to stop a legal activity. Protesting is still legal in this country. There are issues that need to be addressed on several levels.
I await your scathing rebuttal...
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They were suppressing a service they provide that does not exclusively facilitate protected forms of speech. What isn't so clear to me is where the line is that says they can or cannot remove or decline to provide services that are "nice to haves". Having cellular service underground is a great benefit or competitive advantage, but it is not a mandate.
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This was not we can't afford the repeaters any longer, this was we are shutting this down to stop the expected protesters.
They are exercising a heavy hand and making the situation worse when calmer heads could try to work out a reasonable response from both sides.
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The more I think about it, the more I think this isn't an issue of preventing free speech, but possibly one of preventing assembly. The hard part is whether "hindering" is sufficient to make a claim, particularly when the service-provided is entirely at the discretion of the government and when the service was removed indiscriminately (i.e., not targeted at specific people, but at all people).
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The disabling of technology does not stop free speech. The cellular service isn't some sort of protected free speech.
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If a printing press prints anti-government pamphlets, is that providing technical tools to make it easier for the protestors? The activists can still use bullhorns after all.
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An ISP hosting a blog is doing so under contract. If they choose to take something down to aid the govenrment, you may have recourse. Obviously, your free speech was terminated.
Your cell phone, however, is not free speech. It is only a tool. As you say, they can always use a bullhorn. They can yell. Whatever. A cell phone cell isn't a printing press. It's just a tool. There is no obligation under the law to provide the tools. BART (or any other govenment organization) cannot be forced to provide cellular service under the first amendment, it's an optional service, a benefit, a bonus. It's not a right.
It is under the same logic as to why a cell phone company doesn't have to offer you service. You don't have a right to cellular service.
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If the government shut down printing presses in a town right before a political rally to prevent 'opponent' press from being created and distributed, would that violate the First? I do believe we've seen printing-press seizure discussed here before.
One could find printing services elsewhere, but we've seen where that seizure would violate the First Amendment through Prior Restraint. Unless, of course, I'm much mistaken here.
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> The cellular service isn't some sort of protected free speech.
Basically, you can have all the free speech you want, as long as we can take any technical means for you to communicate with others.
As long as you are in isolation, you still have your free speech.
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Lets shutdown radio stations and see what happens or shutdown TV stations, or shutdown the post office, or shutdown Fedex, they are all technological marvels but tech no less.
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"Today the government has announced that the free speech zone covering the entire country will be gitmo. Have something you want to protest go to the tip of Florida and keep going south. Don't forget your kickboard."
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Nor is there anything about "blogging in the internet", but that is considered speech.
The people at the station(s) in question are still free to exercise free speech.
Non-argument. Just because you can go somewhere else does not negate the prior restraint.
No company is obliged to provide technical tools to make it easier.
No one said they were. The government taking away the tools is prior restraint. Think about the government seizing a printing press.
They were not targeting speech they didn't like - they were targeting those who were using this technology to spread hateful / illegal speech intended to create disruption and potentially a riot.
They targeted ALL speech and that is prior restraint.
They are not obliged to participate in their own demise.
Perhaps true, but still doesn't mean they can prevent speech.
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Are they? I don't know myself. Can anyone else chime in on this one?
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If they had open comments in the first place, but then shut them down after the fact because they didn't like the tone of the comments, then I'd say yes. But IANAL, so I don't really know.
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Like I said IANAL, but I believe that whether there are other avenues for the speech or not is immaterial in prior restraint cases.
And, choosing to offer the chance to openly comment via a blog would be an optional service.
Not really sure about the "optional service" argument either, but that doesn't seem quite right to me.
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Me: "hahahahahahahaha".
Sorry, I couldn't help myself. I think you have it backwards. There is no constitutional right to technology tools. You don't have the right to a constantly available cellular network.
They didn't stop any speech. The speech continues unimpeded. They only stopped to help spread that speech widely through technology.
You want to have free speech on a cell phone? Go where there is a working cellular cell. If the one at the BART station is down, well, TFB. There is no "right to cell service in a BART station" assured in the constitution.
Tell me exactly what speech was subject to "prior restraint".
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So to your rebuttal...
Did you forget that a printing press is also 'technology'. Replace the word 'Technology' with 'method of distribution and communication' and you should be able to see the Prior Restraint issue. If a private company takes down that service, that's their choice. If the government takes down that (method of distribution and communication) for the purpose of blocking speech it doesn't like (which is exactly the reason they gave!), that is Prior Restraint.
You keep going back to the Constitution demanding that we show you a Right to Technology... we don't have to. We start at the First Amendment and go into the Case Law that created the idea of Prior Restraint.
Any and all protected speech that was blocked by the government in its attempt to stop what it considered to be unprotected speech. Pretty simple concept.
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It's not technology unless it has blinking lights and lets you "reverse the polarity".
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Please re-read the above statement. I would like to call out "hateful / illegal speech" and "potentially riot."
"hateful / illegal speech" : Please define what this is, cause last I checked if I am not yelling fire in a crowded theater there is no such thing. As for being hateful that seems a little presumptuous. People are allowed to protest which is what this was.
"potentially riot" : This is completely unprovable and a non sequitur. OH NO! There could be a riot. The same stands true for a Raider's football game, so I would like to know what your point is. By your logic we should ban the use of cell phones there as well. It will get out their message of hate. For that matter I guess we should just blackout the game cause someone might bring a sign while dressed in spikes and body paint saying something not nice about the opposing team.
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There is no concept of "Illegal Speech" in US Law. The only exception is to incite imminent lawless action. Emphasis on imminent. Since the cellphone service was cut off before that protest, any action that might have happened, illegal or not, was not imminent. BART clearly broke the law.
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Don't confuse the act "free speech" with the technology "cellular service". If there was a power failure, would you consider that to be somehow infringing on your free speech? Would you sue the power company for making your internet connection unavailable? Nope. Technology isn't a requirement of free speech.
The cellular service is a "plus" offered by the transit company, and they can, at their discretion, disable it, remove it from service without notice, or modify the parameters under which it can be used, within the limits of their licensing agreement with the FCC for the transmitter. What would you say if their system went down because of a technical glitch or if they had to change the system around, making it unavailable for a few days? Would you sue them for limiting you free speech?
Nope. So the argument doesn't hold water.
As for "illegal speech", by that I mean "unprotected speech", which is often referred to by the former term.
Which "law" did BART break, exactly?
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The internet provider in not the government, if the government shut down your blog, then yes, that is prior restraint. (Well, at least it should be - we'll have to wait on the domain name seizure cases to find out for sure)
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Government entities do not have the same rights as private institutions.
If I want to pass protest leaflets at private golf club, the club owner can kick me out. If I want to pass protest leaflets at a public park, the government cannot kick me out simply because it owns the park. Cellphone service is the modern equivalent of 18th century handbills.
Property owned by the government is after all, public property. Cell phone service is a public good, paid for with public money. Government cannot selectively deny service to the public because the administrators disagree with the speech being used on it.
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Me: That sort of fails on a bunch of levels. First, both BART and the cellular service are "restricted access", and both legally. BART has a fair system, and the cellular companies charge to use their networks.
BART may be public transit, but try to access it for free and tell me how that works out for you. Your "free speech" is denied because you didn't pay the fare.
Cellular service may be on the public airwaves, but try to pirate it for free and tell me how it works out for you. Your free speech is denied because you didn't pay for service.
There is no legal obligation for a public transit company to offer cellular service in their stations. It isn't a "public" service, and certainly isn't a requirement to meet free speech.
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You are correct in that there is no legal obligation for the government provide mass transit, let alone cell phone access while using the transit system. But once those services are provided to the public they must be administered fairly, and in accordance with all rights protected in the US Constitution.
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Except this wasnt an accident, it was a willful, deliberate shut down BY the govt (state) for the SPECIFIC reason to prevent speech (communications). This IS illegal, no matter how you try to twist it.
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http://ansuz.sooke.bc.ca/entry/23
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Yes, but that's a private provider. Also, I think you'll find that the power company legally can't shut off the power to your blog servers because you critized them on your blog.
"The cellular service is a "plus" offered by the transit company,"
The transit company is part of the government, remember.
"What would you say if their system went down because of a technical glitch or if they had to change the system around, making it unavailable for a few days?"
An accidental or unavoidable shutdown of the service is different. You can ban protests on the courthouse steps if you're in the middle of repaving the steps, or if the building was hit by a tornado. But that wasn't the case here.
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Intent matters, and that is kind of the whole point, is it not? If the power was shut off INTENTIONALLY by the GOVERNMENT to prevent free speech, and they openly ADMITTED this, then the answer to your question as to whether free speech rights were being infringed upon is a resounding YES!
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What they did was still incredibly bone-headed and should not be allowed, but I fail to see how we can all claim a free-speech violation. Now, I think a better argument would be an abridgement of right to assembly.
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Both freedom of assembly and freedom of speech fall under the first amendment, and it seems to me in this case both were violated.
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Well, unless you are ICE or DHS, then you can seize or shut down any site you want under any pretext (or none at all!) whether the site was legal or not (or even non-us owners.)
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I thought determining what is illegal / hateful was the courts job... By the company deciding what is "hateful / illegal", are they not setting themselves up for legal action?
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If BART doesn't filter and someone is stalking another person, then BART is not responsible. If BART starts to filter data, then they take all responsibility for allowing someone to use their services to stalk another person.
What if someone needed to call in an emergency? It's a public risk to purposefully disable common communications.
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Basically, everyone can have free speech as long as they are in isolation and unable to communicate with one another.
Neat trick.
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Tell me, who determines what is hateful and illegal speech? DO you, does the government?
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Cell phone service is a constitutional right?
If I give you my microphone to sing a song and you start talking bad about me, don't I have the right to take my own microphone back? That doesn't mean I volated your rights.
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Re: Cell phone service is a constitutional right?
Otherwise every protest taking place at the US Capitol could be terminated because the US Government can simple take away the ground the protesters are standing on by ordering them to vacate the national mall.
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Very different situation. If you bought your own microphone to sing a song, and you started talking bad about me, I would NOT have the right to take that microphone away from you... That is more like what went on here.
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----BART Spokesperson
OK, I think I get the picture. So once we're all inside the fare gates they can just press the MUTE button or they throw us on the rail. LOL.
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The "safety" angle probably trumps all.
In any event, this isn't much compared to the incident that sparked the alleged upcoming protests -- the death of a man at police hands -- and since you leave that context out, seems obvious that if doesn't affect you directly, you don't care.
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Re: The "safety" angle probably trumps all.
Until this park was estabilshed, this was private land. Why should we have to allow protests at this park? How could we possibly be violating any rights by closing it down during a planned protest, since we never had to establish the park in the first place?
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Re: Re: The "safety" angle probably trumps all.
Given that those events never HAD to be established, we should just deny everybody human rights whenever we damn well feel like it.
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Re: The "safety" angle probably trumps all.
Because this is actually a discussion about the FCC making noises looking into an action taken by BART in an amazing game of "You will respect our authority or else."
While the shooting incident appears horrible, this has been to trial already. The protests were sparked by the shooting, and the prior incidents. It appears the BART police enjoy wielding their authority and often step over the line. Someone who is unable to tell a taser from a gun should not be in a position to have access to either other.
People want change in the BART system to avoid these sorts of thing.
BART has replied by sticking their fingers in their ears saying LALALALALALA WE CAN'T HEAR YOU.
They then try to keep the protests out of public view, possibly infringe on rights (a court will rule eventually), and they roll out their police force in their best riot gear to make sure they make the right impression on the crowd.
By increasing the reactions to restrict and control the people, they are making the people more driven in making their point. They are sustaining the entire ordeal, and at some point they will move for more special powers.
Cooler heads need to prevail in this and turn the rhetoric down.
But then this was a post about the FCC looking into possible violations of the law and if a 1st amendment case would be stronger.
The scope is narrow, but there are many raw nerves on both sides and the conversation on the topic at hand would be lost in waves of supporters from both sides.
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Re: The "safety" angle probably trumps all.
If a private company owns the equipment and the government told them to shut it down. There is a first amendment problem.
If a private company owns the equipment and they shut it down because they want to there are no first amendment issues.
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Actually....
And yes, they were targetting speech they didn't like. I can spread all kinds of speech that makes me an asshat. Asshats are quite legal.
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In fact, that's probably a great 'freemium' model. RIDE THIS MASS TRANSIT SYSTEM FREE - bottle of air - $20.
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BART did not block signals, jam them, or otherwise stop them from entering from outside of the BART system. They only disable equipment in the BART stations.
It is very, very different.
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> They just turned off the "value added service"
Turning off is jamming.
Jamming is a specific form of disrupting.
Turning off is disrupting communication and free speech.
It may not be the same as transmitting new signals to jam (eg disrupt) other signals. But turning off still is a deliberate attempt to disrupt communication and free speech.
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If you put up a 5000 watt booster for cell service, I guarantee you'll hear from the FCC.
Likewise turning off a booster is probably heavily regulated. That spectrum is licensed out in the public interest. Turning off that booster is just as heavily regulated as was getting it licensed in the first place.
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Jamming is one way of disrupting communication.
Turning off equipment is another.
Bombing equipment is another.
There was disrupting of communication and free speech going on here.
That's like saying Egypt did not "jam" or disrupt communication by turning off the entire Internet. Any reasonable person would say it was an attempt to jam communication -- using the term jam to mean disrupt. Just not in the technical sense of jam you define as active emission of a new signal.
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Interesting...
And, apparently, a First Amendment right to protest in an area that is potentially dangerous for both protesters and innocent bystanders.
I just don't get how your desire to speak out against some action by BART gets to trump my right to ride BART without interference. As the old saying goes, "your right to swing your fist stops at the end of my nose." Free speech should just about never be able to trump the rights of others to go about their own business unmolested, as I should have a an equally-valid and important free speech right to ignore your blathering about whatever it is you're on a tear about.
And this focus on the speech being somethign BART didn't agree with seems a red herring. As I see it, they might have taken the same action with a group plannig to swarm a station to show their undying love and support for public transportation. It's a matter of trying to maintain the provision of public services and public safety.
Perhaps the protesters think it's OK if the platform were to become so crowded and chaotic that someone gets pushed onto the tracks.
HM
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Too bad for you. I'd agree that you have a right to go through "unmolested", but you don't have a right to not pass a protest.
"Perhaps the protesters think it's OK if the platform were to become so crowded and chaotic that someone gets pushed onto the tracks."
You can't protest on an active airport tarmac, because it's dangerous for both the protesters and the people on the planes. Similarily, the area immediately around the tracks is not suitable for large scale protests - I get that. That might be the one thing that saves them from a lawsuit here.
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I don't expect to not have to pass by a protest. However, I do expect to be able to pass it by without being in any way diverted from my otherwise reasonable path. The moment a protest delays my use of the trains, the protesters' swinging fists have just met the end of my nose. And they should not be surprised when someone swings back.
HM
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On one hand, I agree that riots should be prevented if possible, and turning off cellular service does seem like a very easy method IF it works.
In fact, I would say it should definitely happen around sports arenas as well, beginning near the end of the game and extending until the riot has happened anyways, or people have dispersed from the stadium without incident.
OTOH, that has a whole bunch of consequences, and I don't think it would stop a riot from happening.
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thin line
Protesting in this country is legel as long as it is peaceful. Protesting has happened many times before cell phones were ever invented, taking away the use of cell phones does not take away the ability to protest.
However there is a potential of a FCC fine for disabling communication. Because of the use of cell phones for emergency use, there could be a case. Local California or San Fran law may even have something to say about disrupting a communication protocol.....
Violation... yes
Blocking free speech... no
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There is alot of crystal ball gazing to say they might have/there were going to.
If A happens, Z might happen so we need to stop A.
And Z is always something where a protester suddenly turns into an Alien and eats a commuters baby.
Some people behaved poorly, yes.
A majority of the people chanted, held signs, and made their point.
They impacted no one negatively except BART police by not doing something that would justify them arresting them.
I think this case will continue for a while, as those with power seem to think anyone that challenges them needs to be crushed and are evil incarnate.
From the arstechnica article on the protest...
http://arstechnica.com/tech-policy/news/2011/08/did-bart-pull-a-mubarak-in-san-francisco .ars
""This is an illegal demonstration," the officer announced. "This is your final warning. The station is closed." "
Thats worrisome.
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I think it's interesting how the transit official just knows it's OK to terminate cell service, but riding the train is now a constitutional right.
You see what you want to see, I guess.
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You have to portray the protesters as terrorists attacking the poor commuters and their way of life.
You have to appear sympathetic to the commuters and their plight that those mean activists want to destroy.
Pay no attention to the heavy handed shutting down of the cell repeaters, we did it for your own good.
Pay no attention to our police showing up dressed for a riot, we did it for your own good.
Please step into the scanner so we can see you naked, we did it for your own good.
Please step into the showers, we did it for your own good.
The protestors are undesirables, they slow your commute down.
Ignore that they are protesting against a system with a checkered past of assaulting and killing passengers, that will never happen to you your a good person.
Ignore that we will control your ability to access the outside world and instead make you use our officers or our controlled phones to report things.
Ignore that man, he was taking photographs so he must be a terrorist.
We are in the handbasket, did we forget where this ride is going?
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Anybody care to enlighten me on how this was a possible violation of free speech and/or the Wireless Communications Act, but being required to turn off your cell in a court of law is not?
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Also, I'd imagine the regulations allow for emergency calls.
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Re: Re:911 calls were blocked too...
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Coverage of BART Protests- Interview with Anonymous, ACLU attorney
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It's clear to me...
1. There is a strong probability of violation of freedom of speech/freedom of assembly rights by this government agency. The statement specifically targeting constitutionally-allowed speech and constitutionally-allowed assembly shows this. It falls under "prior restraint."
2. The FCC is actually doing what it should be doing. Protecting the people's airwaves from illegal interference by government and/or private entities.
Possibly unconnected tangent:
In many legal situations, once a service is provided, removing it becomes a detriment that needs to be remedied/mitigated. I don't know if that applies here- since the government agency supplied FCC-regulated technological access, does it need to mitigate the removal of that access?
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Cell Phone Service
I'm not paying them, nor contributing my tax dollars, to be judge, jury, or law enforcement, or law maker. I'm paying/contracting for wireless
service so I can communicate.
Additionally, if I am abusing my freedom, they must prove I violated the law. Miranda rights should apply to the virtual arrest of a person.
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Exactly how much is BART going to spend defending this in court?
The argument for the first amendment already has been made, so how about the financial argument? Now BART is going to have to spend a good portion of my fare defending a bonehead move like turning off cell towers. I should have been a lawyer.
Great, Right? More fare increases. I get to pay for the defense of yet another foolish authoritarian government agency that has no concern for my rights.
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Re: Exactly how much is BART going to spend defending this in court?
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Anonymous member interviewed on DN!
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Re: Anonymous member interviewed on DN!
I saw this during the Sony and other hacks, people screaming for the blood of the hackers but ignoring they used a paperclip to pry open the lock in the first place.
It is very likely that someone had been in and out of there before, and now that there is a spotlight on it it might be fixed.
But people are more concerned with their information being out there, ignoring it could have been out there before.
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Is a tunnel a violation of free speech?
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It's simply illegal
It's illegal for prisons to shutdown, jam or attempt to jam cellular signals. Now if it's illegal for prisons, why the hell isn't it illegal for BART?
Hint: It's illegal.
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