BART Cell Phone Blocking Action Was Illegal – Update

Here’s an update on the BART cell phone blocking action. BART does not consider the action illegal, rather they claim the action, according to CNET, was “within their legal rights.” This blogger called BART media relations, but has not received a return phone call, as of this writing.

Legal or not, BART’s actions of yesterday have sparked discussion online, and specifically on Twitter. Here’s a sample of the tweets:

EFF EFF
BART-initiated cell service shutdown in the face of potential public protest is a chilling strike against free speech.

AriA_Non_Ymiss Aria
@huffingtonpost Interested to hear your thoughts on @SFBART tactics against protesters. http://j.mp/oFQQDF

danielhewitt Daniel Hewitt
“Both the California Constitution and the First Amendment to the United States Constitution protect your right to free expression.” #BART

What follows below is what I originally wrote about the BART action. I understand BART public relations is upset about the accusation that the action was illegal, but they had to know organization’s actions would spark controversy, and have not presented a sound legal reason to support what was done. When the Electronic Frontier Foundation issues a tweet of concern, as they did with this, that’s a sign BART did something wrong.

BART’s action of blocking cell phone use at San Francisco’s Civic Center BART Station was illegal. According to a number of online sources, it’s a violation of Federal law, specifically Section 333 of The Communications Act of 1934.

According to a citation issued January 26, 2011, by the Federal Communications Commission against Comtrex Communications for illegal cell phone jamming, Section 333 of the Communications Act of 1934 states, “[n]o person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed or authorized by or under this Act or operated by the United States Government.” and Section 302(b) of the Communications Act provides that “[n]o person shall manufacture, import, sell, offer for sale, or ship devices or home electronic equipment and systems, or use devices, which fail to comply with regulations promulgated pursuant to this section.”

There’s no evidence provided by any BART representative that such legal issues were considered before initiating the cell phone blocking action – BART seems to have just plain went ahead and done it.

For example, BART Police Lt. Andy Alkire told the SF Appeal that the cell phone blocking action was “a great tool to utilize for this specific purpose.” But by that, the BART assumption seems to be that it was legal – it wasn’t.

This year the FCC has been particularly vocal in warning that cell phone jamming actions are not legal. Here’s the words from an “enforcement note” put out by the FCC, and visible on this page at the FCC website:

“We remind and warn consumers that it is a violation of federal law to use a cell jammer or similar devices that intentionally block, jam, or interfere with authorized radio communications such as cell phones, police radar, GPS, and Wi-Fi.”

And it continues:

Use of jamming devices can place you or other people in danger. For instance, jammers can prevent 9-1-1 and other emergency calls from getting through or interfere with law enforcement communications (ambulance, fire, police, etc). In order to protect the public and ensure access to emergency and other communications services, without interference, the FCC strictly prohibits the use, marketing, manufacture, and sale of jammers.

And finally:

Operation of a jammer in the United States is illegal and may subject you to substantial monetary penalties, seizure of the unlawful equipment, and criminal sanctions including imprisonment.

And if you want to complain:

To file a complaint alerting the FCC’s Enforcement Bureau to illegal cell, GPS, or other jamming devices, please visit www.fcc.gov/complaints or call 1-888-CALL-FCC. Additional information about jammer enforcement is available at www.fcc.gov/eb/ jammerenforcement or by emailing the Enforcement Bureau at [email protected].

BART has a ton of explaining to do both to the public and to the FCC. Stay tuned.