A Legal Analysis For Why BART's Mobile Phone Shutdown Was Illegal
from the free-speech-isn't-free dept
There's been a lot of coverage over BART's bizarre decision to shut down mobile phone service in one of its stations to hinder some potential protestors. With the FCC investigating, we've heard a number of folks say that there's no First Amendment violation here because there's "no right to mobile phone service." And while it's true that there's no right to mobile phone service, the law is pretty clear that there is a right to not have the government try to stifle a particular form of speech by shutting down infrastructure, solely targeted at that form of speech.That is, the key issue isn't whether BART needed to keep its mobile phone service up all the time. If it goes down for maintenance, that's fine. But it can't turn it off if the decision is to try to block a particular type of speech. And that's exactly what BART clearly admitted to doing. Of course, it's not just the First Amendment at issue. There's also telecom law, and it appears BART violated that too.
Telecom lawyer/consumer rights advocate Harold Feld has a long and detailed explanation for why the shut down both violates telecom law and is also just a bad idea in general. It's pretty detailed, pointing out the specific citations in telecom law that were violated and a series of relevant caselaw decisions. There's a lot in there, but here's a key citation that reads like it could apply almost directly to the BART situation:
In Pike v. Southern Bell Tel. &Telegraph Co., 81 So.2d 254 (Ala. 1955), Mr. Connor, in his capacity as Commissioner of Public Safety for the City of Birmingham, ordered Southern Bell to remove the telephone of one Louis Pike, described by Mr. Connor as “a negro” of “questionable character” alleged by Mr. Connor to be a “well-known lottery operator in the city” and to be using his phone for unspecified “illegal purposes.” Reviewing cases from other jurisdictions (including People v. Brophy), the Alabama Supreme Court found that the right of every citizen to use a phone was guaranteed by federal law and could not be deprived without due process. As the Court observed:
The present tendency and drift towards the Police State gives all free Americans pause. The unconstitutional and extra-judicial enlargement of coercive governmental power is a frightening and cancerous growth on our body politic. Once we assumed axiomatic that a citizen was presumed innocent until proved guilty. The tendency of governments to shift the burden of proof to citizens to prove their innocence is indefensible and intolerable.
We are not able to glean from the bare conclusions set up in the letter of the Commissioner, whether it is claimed that the “illegal” use of the telephone was by the appellant, her husband, or a total stranger. From aught that was alleged in the plea, except for the conclusion of the Commissioner, no “illegal” use of any type was made of this telephone by any one.
The notice alleged to have been received by the Telephone Company was couched in the terms of a direct order from the Commissioner of Public Safety. What is the source of Mr. Connor’s authority to issue such an order? We know of none. And we hold that none exists.
If we took a contrary view, it would naturally flow and follow that the telephone company would be justified in acting on the notice of any over-zealous law enforcement official who, without evidence, and on mere suspicion, is impressed with the bad character or occupation of a particular telephone subscriber. The letter from Commissioner Connor set up in the plea is no defense. It is the Telephone Company’s burden to show that the use being made of the telephone did, in fact, justify its removal.
These depredations of a subscriber’s legal right to telephone service constitute a denial of due process guaranteed by the Constitution of 1901, art. 1, § 6. The gratuitous and arbitrary action of a police official is no justification for an abridgment of this right. To hold that the Telephone Company is justified in discontinuing service by “order” of a police official would require judicial recognition of a police power which does not exist. The bald assertion of an executive officer, be he the Attorney General of the United States or a constable of some remote beat, cannot be accepted as a substitute for proof in the judicial process. No presumption arises as to the sufficiency of evidence based on a law enforcement officer’s conclusions.
Similarly, the BART's possession of “intelligence” that individuals may use their mobile phones to coordinate illegal activity does not confer “police power that does not exist.” BART must still go to the California agency with actual jurisdiction, the CPUC, and obtain a legal order authorizing the shut down of cellular service.
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Filed Under: bart, free speech, harold feld, mobile phones, protests, wireless
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One way to bring a suit would be to find someone who has been disconnected and used a VOIP service as their phone line. This seems like good caselaw to punish ISPs for selling out their customers.
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But I don't think you even need to be using a VOIP service for it to apply. The internet is a communication service, just like the telephone, and voice is just one type of data that travels over it.
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I think a Judge having to consider if they need to pay back all of the subsidies would make them quickly reconsider the position.
And one could have fun with cities revoking their agreements to run poles and wire. They are no longer working as a utility, they want to be in the enforcement business for dubious claims. Why give them any breaks at all on anything.
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With the usual result....
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No credit for submission?
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Re: No credit for submission?
Hey. I've been at conferences all day today. All the posts so far were done last night so I could conference... so yeah, I saw this yesterday...
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Response to: Rekrul on Aug 24th, 2011 @ 3:04pm
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Clearly distinguishable
However, that's not what happened in the BART situation Nobody in the BART situation deprived anybody of the right to own a phone or subscribe to a cell phone service. Nobody's phones were confiscated, nor were their subscriptions cancelled. BART disabled repeaters that had been placed in its stations as a convenience for riders.
It may very well be the case that BART was in the wrong (though, personally, I don't think so), but this case does not appear to support that.
HM
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Re: Clearly distinguishable
In the BART case, we have BART - the owner of the repeaters - denying service to it's users based on the presumption that they were going to use their phones for illicit activity.
I really don't see how you can NOT see that.
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Re: Re: Clearly distinguishable
In the BART situation, BART merely said, "OK, we're not providing cell phone repeater service at all today." Nobody was singled out. BART didn't selectively deny use of their cell phone repeaters to the people they didn't like, but allow people they did like to continue to use them. They pulled the plug altogether. And, unlike in the Bell case, it appears BART pulled that plug only long enough to get past the potentially dangerous situation they were worried about.
Bell was in the business of providing phone service, and no other sevice provider were available. Here, BART is not a cell phone servce provider. Nobody subscribes to the BART Mobile Phone Services.
It might be more applicable if BART had banned someone from ever riding its trains, because the person was believed to ride the trains to and from "illicit" activities.
HM
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In the BART situation, nobody was singled out. Nobody's cell phone subscription was cancelled. Nobody was put on a blacklist preventing them from establishing cell phone service.
The facts of the Bell case just make it inapplicable to what happenedin the BART situation.
As for your landline example, it is easily distinguished from the BART situation as well. If the building owner cut his own riser wires, he would arguably be in breach of his lease to you, since you rented the apartment with phone wiring. In any case, cutting the wires is a physical act that seems to imply an intent to permanently deprive the target person of his landline phone service. This is not the case with BART. Nobody's "wires" extended to the train platform until BART added cell phone repeaters as a convenience to its customers. BART merely decided to not provide that convenience for a short time. Anybody who still wanted to use their cell phone could go back to a point where the cell phone signal could reach them naturally, which was exactly what had to happen in the time before BART added the repeaters in the first place.
So, the Bell case might be used as a precedent for the general concept that phone service is considered important, but it is easily distinguishable from the facts of the BART situation, and would therefore not be direct support for the proposition that BART's actions were illegal.
HM
HM
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Important point overlooked: "the Telephone Company"
Just sayin'. -- Of course I agree with you in principle, but it ain't necessarily so in actuality.
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Correct, but People v Brophy was tried in California.
The California Court of Appeals further found that Earl Warren, then the California Attorney General, could not order the phone company to discontinue service to a person the Attorney General suspected of running a gambling operation by use of the telephone. - From the referenced article.
Also, there is Ca PC 591.5...which is a misdemeanor charge, "A person who unlawfully and maliciously removes, injures,
destroys, damages, or obstructs the use of any wireless communication device with the intent to prevent the use of the device to summon assistance or notify law enforcement or any public safety agency of a crime is guilty of a misdemeanor."
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Phone service
I doubt very much that the intentions of the protestors was to summon the police..eh? And I doubt that Bart's intention was to prevent anyone from summoning the police either.
Those kids destroy our property and you are defending their right to do so. I find this abhorrent! If you defend their right to peaceably gather, fine, but to organize and endanger the public is another thing, and calls for stricter actions. Don't you think?
Also, cell phone service is offered as a convenience and IN ADDITION to one's normal cell phone service, not as a stand-alone monopoly.
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Re: Phone service
I must have missed that part, where did he do that?
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Phone service
I doubt very much that the intentions of the protestors was to summon the police..eh? And I doubt that Bart's intention was to prevent anyone from summoning the police either.
Those kids destroy our property and you are defending their right to do so. I find this abhorrent! If you defend their right to peaceably gather, fine, but to organize and endanger the public is another thing, and calls for stricter actions. Don't you think?
Also, cell phone service is offered as a convenience and IN ADDITION to one's normal cell phone service, not as a stand-alone monopoly.
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The movie theaters were considering "jamming", which is broadcasting powerful radio noise on the same frequencies that cellular phones use, obscuring the signal and thus rendering them useless.
Jamming is illegal because those frequencies are auctioned off, then licensed for the exclusive use of the spectrum rights owner, say AT&T or Verizon. A theater owner who jams cellular phones is broadcasting on Verizon's spectrum, and that is a violation of a law.
In contrast, BART just turned off their repeaters, which they normally operate in cooperation with the spectrum rights owners.
BART passengers use BART's repeaters because the trains travel underground where normal cellular towers don't reach. BART installs either a Distributed Antenna System (DAS) or leaky coax antennas to relay the cellular carriers signals through the tunnels. They own and operate this sub-network. The movie theater is served by regular cellular towers from nearby outside.
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Communications law
Peaceful protest is quite another thing.
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It isn't illegal. It can be argued that it *MIGHT* be illegal, but that is for a court of law.
Mike, for a guy who pushes the 4th amendment like mad, you seem more than willing to find people guilty without trial very quickly!
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Says the anonymous coward who doesn't even know the difference between the Fourth Amendment (against search and seizure) and the First Amendment (freedom of speech and assembly.)
Sorry dude...I'll take the opinions of a Telecom/Consumer Rights lawyer over your opinion any day.
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As always Mike is very fast to use fact titles when the story is really a legal opinion, nothing more.
As for 4th amendment, the point is due process. Seems that the title declares them guilty without a trial. Perhaps you could like to try to correct me on that too?
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Yes, TAM, you are right. However, luckily for all of us, we know your opinion is based on half-truths, made-up facts, and misunderstanding of the law. The lawyer has quite a bit more experience and learning, and thus I think it is safe to say that most of us value his opinion over yours.
As for 4th amendment, the point is due process. Seems that the title declares them guilty without a trial. Perhaps you could like to try to correct me on that too?
Maybe this will help since you appear to be a moron in a hurry (The Amendments that Keep the Government from Taking Away Your Natural Born Rights):
1st Amendment: Right to religion, speech, press, assemble, and petition the government.
The government may not stop me from worshiping who I want, saying what I want, printing what I want, going to a public place with a bunch of my friends, and asking the government to fix itself. Sure, if I hurt someone else in the process, I am responsible, but otherwise the government cannot stop me.
2nd Amendment: Right to Bare Arms.
Government cannot take away my ability to fight for my first amendment rights. Some within government argue that the right only is extended to government militias, but that hasn't turned out well in challenges to the supreme court.
3rd Amendment: Prohibits Quartering of Soldiers out of War Time.
Because, if they can just put a soldier in your house, they can take away your 1st and 2nd amendment rights too.
4th Amendment: Prohibits unreasonable searches and seizures and sets out requirements for search warrants.
Has nothing to do with due process, except maybe that it defines what the process is for a warrant. A police officer can search or seize evidence in plain sight, or under exigent circumstances (which can be abused) but they cannot go on fishing expeditions through your property looking for evidence unless they follow the rules.
5th Amendment: Protects the right of due process, prohibits self-incrimination and double jeopardy.
Ah, Due process...here it is. Not the fourth one, but the fifth one (and is extended in the 6th, 8th and 14th ones.)
6th Amendment: Protects right to fair and speedy trial by jury of peers, right to notification of accusations, confront the accuser, and obtain witnesses and council.
The anti-anti-Kevin Mitnick amendment...the government cannot hold you in jail indefinitely without trial, and the government needs to tell you what they think you did, and allow you to get a lawyer and build your defense.
8th Amendment: Prohibits cruel and unusual punishment, as well as excessive fines and bail.
What copyright maximalists would love to see disappear in the Thomas case. The punishment needs to fit the crime, and needs to be usual and not extreme.
14th Amendment: Extends amendments to all persons in the borders of the United States, both citizens and those visiting from foreign countries. Contains Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause.
So that guy who is here illegally in the US has equal protection under the law to the amendments as those who are here legally or who are citizens. And more due process for all.
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It's a freaking opinion, not a fact, and if the pro-copyright people did the same thing in an article, Mike would be all over them like a pig on slop.
So, would you like to address the actual issue, or are you going to make some comment about my grammar or some other irrelevant part of the discussion?
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Nobody, except for you, has said that it was fact.
The title was "A Legal Analysis For Why BART's Mobile Phone Shutdown Was Illegal"
So, from an English standpoint, the sentence says: A Legal Analysis (as in an opinion based on a legal interpretation) For (in otherwords, this is an argument for the following,) Why BART's Mobile Phone Shutdown Was Illegal (the premise of the argument.) I realize you can't comprehend English...it is one of your many foibles.
Show me were Mike said that it was fact...or that I said it was fact, or anyone else. If you even read the article, I know, too many words confuse and frighten you, but the original author doesn't even say it is fact. They are stating their opinion, and then using facts to back it up...something you have never done so I can understand why you have such a big problem with it.
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Please explain that to the voices in your head. They're getting loud enough for the rest of us to hear.
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And you call this a Fact Blog, Mike? Seems to me like an Opinion Blog! Shame on you, The Masnick.
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It would seem this paragraph applies equally today.
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How would Pike v. read on ICE domain-name seizures?
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Bill of Rights?
I see unkempt white kids (I was on the periphery of one demonstration) expressing their anger at "the Man", the weather, the economic situation, and now at Bart for withholding their precious cell phone service; which by the way still exists for them using their regular carriers above ground, where the mobs usually are when not destroying Bart property (which we taxpayers and riders pay for). You really want to piss off the little brats - ban them from Bart stations.
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Re: Bill of Rights?
It does seem like BART thinks that they are doing that as a service to their patrons. However, I wonder whether the legal system will agree. However, since cell phones are specifically covered by the law, and interrupting them is specifically prohibited by federal and state law, the courts might not see them as wifi.
I don't understand why BART didn't just ban them from the stations. With the exception of the 1st amendment protections of lawful assembly on public property...if BART is not public property (I believe it is,) they would be well within their rights to issue a trespassing order and send the protesters on their way. I was not present so I don't know if any damage occurred, and I haven't read any reports that the mob itself was unruly, except that some arrests were made (but arrests can be made for many reasons even during a peaceable demonstration.)
And it doesn't matter if it is a bunch of unkempt white kids, black men in expensive suits, or anyone else...the first amendment allows for peaceable demonstrations.
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Actually, the original protest was because of an individual who was shot and killed by BART police. BART shut down the cell phone service in order to stop that protest, which sparked another protest.
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Re: Bill of Rights?
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Due Process Slipping Away
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Government officials..
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Not Unconstitutional
And as for the CPUC, BART isn't under their jurisdiction. First, BART likely wouldn't be considered a cellular provider, even if they have control over these facilities. And second, the CPUC has only the lightest regulatory authority over cellular providers. It can only regulate the terms and conditions of service (and there only slightly) unlike the full tariffed rate regulation it has over landline providers.
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BART is Unsafe
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Welcome to the valley of the real
Or as was once wisely said:
"Tell me, Mr. Anderson... what good is a phone call... if you're unable to speak?" - Agent Smith
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cellphone repair
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