BART Cell Phone Service Shutdown: Time for a Virtual Forum?

I. INTRODUCTION II. BART CELL PHONE SERVICE SHUTDOWN A. Overview B. BART's Response and New Policy C. FCC Review III. BACKGROUND A. The Communications Act of 1934 1. Overview 2. Blocking and Jamming Signals B. The First Amendment 1. Freedom of Assembly 2. Freedom of Speech: Prior Restraints 3. Freedom of Speech: Public Forum Doctrine IV. BART CELL PHONE SERVICE SHUTDOWN IMPLICATIONS A. The Communications Act of 1934 B. Freedom of Assembly C. Freedom of Speech: Prior Restraints D. Freedom of Speech: Public Forum Doctrine V. NEW PUBLIC FORA: THE "VIRTUAL FORUM" VI. CONCLUSION I. INTRODUCTION The balancing act between protecting First Amendment rights and the necessity of law enforcement to maintain public order is not simple under any circumstances, but, in 2011, this conflict was front-page news. (1) Rapid advances in technology, such as smartphones and social networking platforms like Twitter and Facebook, have severely heightened this issue by providing people with a greater capability to organize and implement protests quickly. (2) From "flash mobs" that rampage through the streets (as they did in England), (3) to revolutions which overthrow governments (as they did in Egypt), (4) to peaceful protest movements such as Occupy Wall Street (5) (and all of the "Occupy" spinoffs such as "Occupy D.C.") that exploded overnight, all have one aspect in common--rapid communication by protesters via text, Twitter, and Facebook on Internet and non-Internet based cell phones. In fact, in countries where the Internet was shut down, as happened in Egypt, (6) the only means of communication was through the existing telephone system and landlines because this service was not easily or centrally controlled by Internet servers. (7) As governments across the political spectrum have become alarmed at this development, they have struggled with how to respond by giving varying weights to public expression versus public order. In the United States on August 11, 2011, the very essence of this problem was exemplified by the Bay Area Rapid Transit's ("BART") actions in San Francisco, California. (8) BART decided to shut down Internet and cell phone service on station platforms to prevent people from communicating with each other in order to organize and implement planned protests. (9) The protests were held to express continuing public outrage over the use of alleged excessive force by BART police officers for fatally shooting a man on July 3, 2011. (10) BART stated that the shutdown was proper to protect public order, (11) but this unilateral action raised significant legal questions as to whether this was authorized under federal telecommunications law relating to the right of the passengers to access the telephone network and the legality of a shutdown by a quasi-governmental authority such as BART. Additionally, BART's actions raised issues concerning the First Amendment rights of the passengers and protesters to freedom of speech and assembly. Both the constitutional and telecommunications law implications of BART's cell phone and Internet shutdown provide for needed analysis and reform, especially in an age of rapidly advancing technology. Part II of this Note will discuss the facts surrounding the planned protests and BART's reaction to the crisis by shutting down cell phone and Internet service. Part III will highlight portions of the Communications Act of 1934 ("the 1934 Act") and expand on its relevance in relation to emerging technologies. Additionally, Part HI will discuss the First Amendment under the freedom of assembly and speech doctrines, focusing primarily on prior restraints and public forum doctrines. Part IV will assess the potential issues raised by BART's cell phone and Internet shutdown in relation to telecommunications law and the First Amendment in light of the clearly political nature of the speech involved. …