Blocking Cell Phones in San Francisco: A Constitutional Conundrum

Remember back in February when Egypt’s uprising was capturing the world’s attention? The country’s brutal dictator, Hosni Mubarak, shut down the Internet to prevent protesters from organizing and sharing information about the crackdown with the rest of the world.  This heavy-handed tactic earned the scorn of civil libertarians of all stripes, as it showed how blind the regime was to the right of people to express themselves.  While it may not come as a shock to learn that Syria has used a similar shutdown of communications to block videos of its ongoing massacre of freedom protesters, it surprised me to hear that we’re not above mobile blackouts here in the US of A.

Last week, following word of plans to mount a protest against the killing of a drunken transient in the San Francisco subway system (after he came at them with a knife) the Bay Area Rapid Transit authorities blocked out cell phone access in their stations.  The goal was apparently to keep protesters from using the Internet and text messaging to organize a mass gathering of people within BART’s subway stations.  The seemingly Draconian step comes only weeks after another first world nation, Great Britain, considered doing the same thing to prevent further violence during the outbreak of riots.  Scotland Yard ultimately dismissed the idea as far outside the bounds of the law, but the debate continues in Parliament.  Tom Scocca’s analysis of the incident in Slate last week hits the nail on the head.  There are differences between the reasons American and British officials considered blocking communications access and the reasons Chinese, Egyptian or other authoritarian government officials decide to.  It’s not as if BART chose to block the phone signals in order to prevent the downfall of their regime–they simply wanted to prevent masses of people from clogging up the subways during rush hour.  But why does it still feel so wrong?

I think it’s important to keep the conversation about this in the foreground because it marks a significant change in how we think about the openness of the communications grid.  We tend to take it for granted that we can make calls and send messages to anyone, just about anywhere (even the Boundary Waters Canoe Area).  It’s a sort of combination between freedom of speech and freedom of association, although clearly one the framers of the Constitution could never have imagined.  Government authorities in the US cannot control what is actually said on their property, but they do have the right to control the time, place and manner of speech on their property.  Was this jamming the exercise of their power to establish time, place and manner restrictions if it happened on the fly, with no prior notification of what the conditions were?

Some free speech advocates argue that the Internet should be open and unfettered and that the best way to counter disruptive speech is with more speech.  That doesn’t necessarily work when the people speaking aren’t expressing viewpoints, but calling others to action or worse, inciting violence.  One also has to consider whether it’s ok to block specific individuals, whole social networks like Facebook or Twitter or all communications from the network level.  There are so many potential pitfalls in this analysis that it could keep the Supreme Court busy for years trying to sort it all out.

For now, though, let it suffice to say that I believe that there was a line that BART crossed when it jammed signals.  If they were worried about protesters, they could have responded with measures short of silencing mobile communications.  If we were in a full-scale riot like those in London, then maybe there would be more justification.  Even still, I would hope that this incident would spark federal, state and local government agencies to consider and adopt a policy framework for when and how such measures will be taken so that the public has a chance to comment before we’re in a crisis situation.  We all know that crises lead to bad laws, so now that we’re in a calmer time (DC earthquakes notwithstanding), let’s put our heads together and figure out how to preserve order and the right to communicate freely in the Internet age.

More excellent analysis of the issue from NPR’s On The Media here.

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About Justin Kwong

An attorney in the Twin Cities and adjunct professor at William Mitchell College of Law where I teach a seminar on the law of virtual worlds.
This entry was posted in Legal Developments, Mobile Devices, Regulation and Rule-making, Rights and Civil Liberties, Social Networks and tagged , , , , , , , , , , , . Bookmark the permalink.

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