Using Technology to Deepen Democracy, Using Democracy to Ensure Technology Benefits Us All

Monday, August 29, 2011

"There Is No BARTistahn, and the Directors Do Not Get to Decide This on Their Own"

Harold Feld over at Public Knowledge:
My reaction to the news that the Bay Area Rapid Transit (BART) police shut down cellphone networks in a number of stations on August 11 had nothing to do with democracy, the First Amendment, Tahrir Square, etc. With all deference to the importance of these concerns, my reaction was WHAT DO YOU MEAN THESE IDIOTS MESSED WITH THE PHONE SYSTEM?... [W]hat could possibly go wrong when you pull the plug on a critical piece of infrastructure whenever some local police chief or city council person or whoever decides they need to do something about these “flash mobs” or “rioters” or whatever? … There is a reason we do not mess with the phone system, and why that doesn’t change when the phone system is wireless... [I]nterrupting access to a cell phone network is not about tweets and Facebook and other Title I/information services. Shut off a cell phone node and you are messing with a phone system… BART is an instrumentality of the State of California. As in Brophy, the mere allegation that someone (or some group of someones) may use their phone for illegal purposes most emphatically does not confer authority to unilaterally shut off access to the phone network -- even if that phone network is physically located within the BART. Why? Because the BART is an instrumentality of the state of California and is geographically in California. There is no BARTistahn, and the Directors do not get to decide this on their own…. We routinely hear statistics about how for many people their cell phone is their only phone -- and sometimes their only source of access to the Internet as well. Americans rely on their phone service remaining stable, dependable, and available at all times. Yes, everyone knows the frustration of dropped calls. But it is one thing to experience a dropped call or overloaded network. It is another thing for local authorities to decide to cut off service on their own initiative, without any restraint or oversight, for whatever reason they find compelling. More than seventy years ago, Congress made a choice to take that option away from local authorities. It conferred jurisdiction on the FCC and the state Public Utility Commissions to provide oversight, and gave everyone a federally protected right to access the phone network. That right applies to all phone networks, whether wireline or wireless. Somebody might want to point that out to the BART Directors…
Lucky for us, one can feel the full force of Feld's excellent point while still connecting the dots to "democracy, the First Amendment, Tahrir Square, etc."


myst101 said...

'bout time you chimed in on this issue ;)

jimf said...

> Somebody might want to point that out to the BART Directors…

You know, the BART directors were doing what BART directors everywhere do. It's the fact that the **phone company** complied with their request without a peep that's more disturbing.

Disturbing, but nothing new. AT&T has a long history of cooperating (silently) with law enforcement and intelligence organizations -- so much so, that it was a joke in one of Lily Tomlin's "Ernestine" skits on the old Laugh-In -- there's a YouTube clip in which Ernestine calls up Cher, after having found her private number in a booklet she has at hand -- "The CIA Looks and Listens to the Stars".

Same thing a few years ago when the Justice Department was fishing for evidence to use as an excuse for internet censorship -- they demanded that all the search engine providers turn over (supposedly anonymous) query information. Only Google held out (but then was forced by court order to comply with **part** of the Justice Department's demand). (In China, on the other hand. . . well, at least Google held out.) Microsoft, on the other hand, when criticized, issued a bland PR statement to the effect that "Microsoft always cooperates with legitimate requests from law enforcement authorities, blah, blah, blah. . .".

Hierarchical organizations (of which corporations are the prime example in modern life, even more than governments or the military) understand hierarchical power, and have a knee-jerk response to government authorities exercising the same kind of power. The people who actually use the phones (or the Web) are just -- well, let's just say that a particular individual's "right" to use the phone is the last thing on anybody's mind in those circumstances.