BART the tyrant


Some readers may think this is the title of an episode of “The Simpsons” but they’re wrong. This BART isn’t the irreverent protagonist of the well-known American sitcom, it is the Bay Area Rapid Transit, the San Franciscan communication system, recently accused of using Mubarakian methods to prevent social unrest.

On July 3rd, a 43-year-old homeless man named Charles Blair Hill was fatally shot by BART police, adding to an already abundant list of controversial issues involving BART.

Early August, several organizations, amongst which the notorious hacker group Anonymous, called for a protest against Mr. Hill’s death. Demonstrations should have taken place on August 11th, but that wasn’t the case by reason of a questionable initiative taken by BART’s Board of Directors.

Indeed, fearing demonstrations’ unwelcome and unsought effects, BART decided to block Wi-Fi and cell phone service in four different stations. This move was meant to hamper potential protestors from exploiting social media as a tool to better organize themselves and avoid police, but it patently exceeded its original purpose.

Shutting down the communication network is the kind of Machiavellian move that, after the Arab Spring, people associate with shabby dictatorship. In fact, a number of civil libertarians and NGOs, outraged by what occurred, are now comparing BART’s initiative to the oppressive methods of some Middle-Eastern regimes, crying out that “prevent[ing]the organization of a protest constitutes a prior restraint on the free speech rights of every person in the station, whether they’re a protester or a commuter”.

BART is the first U.S. government agency to shut down wireless access to suppress riots, but other Western governments have already considered adopting some Mubarakian techniques to cope with social turmoil. Indeed, even if Western leaders have unanimously extolled the role of social media as a vector of freedom during the North-African revolutions, they appear to be more reluctant to praise this vital role when social unrest becomes a domestic issue.

In the US, there is no constitutional provision that protects the right to use a mobile phone but, as Edward Hasbrouk highlights, People v. Brophy has ruled that “the telephone company has no more right to refuse its facilities to persons because of a belief that such persons will use such service to transmit information that may enable recipients thereof to violate the law, than a railroad company would have to refuse to carry persons on its trains because those in charge of the train believe that the purpose of the persons so transported in going to a certain point was to commit an offense”. People v. Brophy, 49 Cal.App.2d 15 (1942).

Furthermore, the cellular telephone and data equipment that was shut down by BART was licensed to cell phone companies, not to BART: therefore, “turning off that equipment was a criminal violation of 47 U.S. Code § 333 on the part of the responsible BART staff”.

Finally, free speech benefits from a two-fold protection in California. First of all, the First Amendment of the US Constitution guarantees that government may not limit free speech; secondly this text is further corroborated by article 1.9 of California’s Constitution that expressly states that “every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press […]”

Being a California government agency, BART is obviously subject to both the aforementioned norms. Therefore, it is manifest to this author, to detect slight discrepancies between California’s Constitution and BART’s official statement with regard to the wireless interruption that was imposed. Indeed, whilst the former vigorously affirms the right to free speech, the latter surprisingly claims that “no person shall conduct or participate in assemblies or demonstrations or engage in other expressive activities in the paid areas of BART stations, including BART cars and trains and BART station platforms”.

No “expressive activities”? Does this mean that one is supposed to stay mute and fairly apathetic while on a BART platform?

Freedom of speech is the very basis of democracy and cannot tolerate negotiation. George Washington used to say: “if the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter”.

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