SAN FRANCISCO . Bay Area Rapid Transit district officials said they were attempting Sunday to shut down a hacker's group website that lists the names of thousands of San Francisco Bay area residents who are email subscribers of a legitimate BART website. ... Besides the names of the subscribers, the group, known as Anonymous, also posted the names, street addresses, email addresses and phone numbers.
... The posting comes in response to BART officials on Thursday cutting off underground cellphone service for a few hours at several stations to thwart a planned protest over the recent fatal shooting of a 45-year-old man by police. BART spokesman Jim Allison has said that the cell phone disruptions were legal as the agency owns the property and infrastructure.
full article at:
IMHO, since BART owns the cell phone infrastructure on its subway, it has the right to suspend cell phone service.
The use of cell phone technology by mobs to coordinate attacks has created disturbances in London and Philadelphia where property has been damaged and people injured.
Mon, 15 Aug 2011 07:45:37 -0700 (PDT) Lisa or Jeff wrote: referring to:
What BART did may have in fact been legal, but it is not much different than what dictators in Egypt and other Arab countries have done to "squelch" those who they deem subversives. Cameron in the UK has proposed that communications be cut off as well. Is this what we want our governments to come down to?
And does BART own the cellphone infrastructure or the companies who installed it?
There is a significant difference between BART and those other governments, and that is the issue of passenger safety on an active busy railroad. Subway stations are a constrained area, and it is very dangerous to block access to trains as the protesters did. That creates overcrowding on the platforms which can lead to injury of passengers. A subway station is a very different place than a broad square.
Cell phone service in subways is a fairly new service, and social considerations have to be worked out. Society would not want such cell phone service to be used to disrupt train operation in tunnels.
I will just say that everyday people have to get to work, get home to their children, etc. and if protesters are upset at the discontinuance of a new cell phone service, then they should be equally upset at disrupting transit service and creating a safety hazard. Transit passengers have rights, too.
It should be noted that using a cell phone is prohibited on some transit lines to avoid disturbing other passengers, and this is a popular concept. I suspect transit agencies provide antenna for cell phone carriers because they get nice rent from the carriers, even if their passengers don't like it. (A proposal in NYC drew opposition, but I think its going in anyway.)
According to one article: "The agency did not jam cell signals, which is illegal, but shut off the system - which Johnson said is allowable under an agreement with several major phone service providers that pay rent to BART."
I still wonder if deliberately shutting down *911* service (cellular or otherwise) for any reason that isn't itself an emergency (e.g. a gas leak in the subway tunnels requires shutting down electrical devices that might detonate the gas, including cell transmitters. But they'd need to shut down the trains, too.) might make them liable in a wrongful death suit should failing to reach 911 make a significant difference in the outcome.
Most of the scenarios that could realistically happen would involve someone with medical problems *stuck* in a stalled subway car, though, which doesn't happen very often, I hope. (I am reminded here of a situation in Dallas where a subway car stalled in a tunnel, passengers waited for a time like an hour, then exited the tunnel on foot, and were threatened with prosecution for trespassing. There was a speaker system to communicate with passengers, which didn't work, and I suspect employees didn't know it didn't work at the time.)
I suspect that liability would also apply to non-repair maintenance upgrade on the 911 system which involved a 3-week city-wide 911 outage because they decided to disconnect all the trunks, *THEN* order new ones, and assign only one man to the task.
In reading various public comments in the news, I can't help but suspect many people do not understand the issue. People seem to think it's a "free speech" issue, but I don't see it that way---one does not use their cell phone to demonstrate. To me, the issue is (1) does a property owner have the right to suspend cell phone service within his property over communications gear he owns, and (2) steps a government action may take in the face of a civil disturbance.
Regarding 1), Many property owners do legally ban the use of cell phones, such as theatres, houses of worship, and commuter rail lines. Once a property owner, like a railroad, installs special gear so its patrons can use their cell phones, does it have a legal duty to provide that service 100% of the time? In today's deregulated world, what law demands that?
AFAIK, there is nothing to stop BART from merely permanently turning off the cell phone antennas on its property if it so chose (beyond contractual agreements with cell phone companies).
Regarding 2), government agencies certainly have the right, indeed a duty, to take action to protect public safety in response to civil disorder. It's common for streets to be closed, curfews issued, liquor stores and bars closed, etc., in response to civil disorder. As mentioned, a demonstration or disruption within an active railroad station is dangerous. Photos of the subsequent demonstration showed demonstrators climbing atop trains and interfering with train operation. BART, like most transit agencies, has safety rules for behavior within stations and platforms and AFAIK this policy has been upheld by the courts, and for good reason. One's right of free speech on a public sidewalk is limited when one enters buildings--a person has no right to march into their governor's office and do a protest.
Why wouldn't suspending cell phone service within a very narrow area be any different than closing off a street or issuing a curfew?
Photos of the BART demonstration (see above) showed some terrified elderly people and very aggressive demonstrators. If an elderly person suffered a heart attack out of fear or because of the disruption in train service as a result of the demonstration, would the demonstrators be liable for a wrongful death suit?
Short answer: almost certainly _not_. They have no 'duty' to provide such service; they cannot be held liable for not providing it.
Note: it is well-established case-law that emergency services providers (police, fire, etc.) do not have a duty to respond to any particular incident, even if notified of the event. I suspect that this would also apply with regard to the 911 'outage' that the OP described.
Aside: this kind of questions are better raised in a 'legal' forum, e.g. misc.legal.moderated.
Yes, the most misunderstood and misquoted amendment out there. I can ban the word "froglegs" from my house and tell you if you say it I'm kicking you out. I have not trampled on your precious First Amendment rights. You're free to say that word outside of my house and the GOVERNMENT will make no attempt to silence you. But it's my right as a property owner not to have that word said in my house.
I'm not pro-protestor. In fact I have made no attempt to keep up with what they're protesting. I don't like it that BART has punished the majority for what a vocal minority have done. Most people who rely on that mobile network have never protested anything in their life, they're just trying to go about their day.
On a more idealist level though, how can we as a nation criticize Egypt or Libya for shutting off wireless access when we do the same thing? True, it's BART, but to the outside world it's the government in America.
Of course they had a duty. BART claimed it shut down communications due to emergency. If they were truly fearful of violence, then they were anticipating that it was likely injuries would occur. The action they took would have aggravated the injuries if delay in receiving treatment was the result.
In this case, BART itself is not the rescue agency. It's still the San Francisco fire department as notified by the San Francisco police department, assuming they run the 911 call center.
I don't see why the case law you are thinking of would apply.
Here's another legal quandry BART has placed itself in. By claiming not to be a common carrier because it doesn't accept all communication traffic but only specific communication traffic, BART may have accepted liability for any use of communication systems when the system itself was used to plan a crime or to set up a situation in which harm was caused to another.
You think BART won't be a party to personal injury lawsuits? I do. They've just made it more difficult to defend themselves for their contribution to the situation by allowing communication to take place.
Common carrier is an all-encompassing shield from a great deal of liability. This was action against their own interest.
Communication was shut off due to perception of the possibility of harm to BART, likely with more concern for public relations than the possibility of damage to property. Communication wasn't shut off because actual property damage was occuring.
So, no, they weren't trying to punish a minority by inconveniencing every cell phone user. They were scared based on incidents in London and other cities.
This is prior restraint.
BART is the government, a correctly held perception inside the United States too.
The US has many layers of government, something some other countries do not have.
It's not hypocritical for the US Sec. of State to denounce a regime for disabling cell phone service while BART does the same because they're two completely distinct entities. But to an outsider who perhaps lives in a country where the national goverment runs everything from collecting from parking meters to running the military it might seem highly hyprocritical. And it's perceptions that can drive a lot of anger against the US.
Show me the statute, or the case-law, *OR* the contractual 'terms of passage' (invoked by the purchase of a ride on the system) that imposes the duty to provide cell service in the subway.
And explain why, say, the CTA got away with failing to fulfill that duty for, literally, _decades_ after cell-phones were introduced.
While you're at it, please identify _when_ this 'duty' came into being. Was it with the first 'mobile phones' (MTRS)? The first cell-phones? The first hand-held mobile phones? The first hand-held cell phones?
Does this 'duty' exist only for subway tunnels, or does it apply to _all_ tunnels. Like the Holland Tunnel into NYC, or the Eisenhower Tunnel in the Rockies. How about Moffat Tunnel? Or all all the other rail tunnels that Amtrak trains go through?
"Inquiring minds want to know!"
"Their property, their rules."
Where did _they_ say 'violence'?? As opposed to say, 'disruption' of their services? Or are you assuming 'facts not in evidence', and then arguing base on those unfounded-in-fact assumptions?
Is the state 'highways' dept (DoT, or whatever name it uses) liable if they move a roadside emergency callbox, and emergency response is 'delayed' to an accident at the former site of the call-box? (somebody had to go from the accident site to the new call-box cite to make the emergency call, thus delaying the response by the travel time involved. Suppose the accident is inside a tunnel, where cell-phones "don't work".
You might try _reading_ what was said. SEPARATE FROM the BART situation, the OP described a situation where _all_ 911 service in an area was disrupted for a period of weeks, due to administrative 'stupidity' in provisioning phone lines into the call center, and wondered about liability in _that_ situation. *THAT* is what the "911 'outage'" referred to.
Does BART actually _operate_ any public radio communications equipment? Do they hold any government-issued "common carrier" radio licenses? (their private-use 'commercial' radio license does _not_ count.) Or do they merely rent the use of some of their property to licensed communications common carriers? (you have to have a license to operate a transmitter, you do _not_ have to have a license for an antenna that somebody else's transmitter is connected to.)
BART just might know what they're talking about. :)
BART absolutely IS a 'common carrier' - Of _people_, that is. They offer services to the public, _for_ _a_ _fee_, and are required to transport any legal passenger who pays that fee. (The _definition_ of a 'common carrier' is one who (a) offers a service, for a fee, to the public, (b) is required to provide that service to anyone who pays the fee for the legal use of that service, and (c) is subject to government oversight, review, and scrutiny of the rates, terms, and condition under which that service is provided.)
They are not a -communications- common carrier, since they do -not- offer any communications service 'to the public', 'for a fee'.
As I understand it, _they_ (BART), do not offer any public communications services AT ALL. They simply 'rent out' some of their property to duly licensed communications common-carrier third parties who provide the actual communications services.
I think it is LIKELY they'll get named in suits. They _are_ a 'deep pockets' defendant, and there are always greedy lawyers to be found -- who will file suit against _anyone_, regardless of the actual 'merits' of the case.
I think it is UNLIKELY that anyone will -win- *anything* against them on the basis of their temporarily shutting down the cell service.
_EVERY_ cell service provider has disclaimers in their customer contract that service may not always be available, and that service may be interrupted/disrupted, *and* that if such happens, it is _not_ a breach of the carrier-customer contract. _Some_ cell service providers have separate contracts with BART to hook their transmitters to BART's tunnel antennas. Those contracts contain a clause that allows BART to disable the use of the antennas when BART deems it necessary to do so.
Claiming -- or denying -- common carrier status has -no- relationship to whether or not one is covered by common-carrier protections.
'Common carrier' protections and limitations apply *ONLY* where there is a *contractual* relationship between the carrier and another party, and serve to limit the liabilities that the *contractual**relationship* would otherwise impose.
Absent such a contractual relationship, it should be obvious that there is _ZERO_ liability for failure to provide a 'contracted' service. Given that, any presumption of the existence of liability must be based on a statutory (be it 'black letter', or case-law, based) requirement to provide such a service.
However, the various "incorporation" cases that have made it through the courts (including US Supreme) have pretty much established that the Constitution (and especially the Bill of Rights portion) mostly _does_ apply to the States and other branches of government.