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Taming the Mob

Posted By Arnold Ahlert On August 16, 2011 @ 12:00 am In Daily Mailer,FrontPage | 8 Comments

In the midst of the uprisings known as the Arab Spring, one of the recurring tactics used by repressive regimes to prevent widespread demonstrations was to cut off cell phone service and shut down social media sites. Thus, there is more than a hint of irony surrounding the decision last Thursday by Bay Area Rapid Transit (BART) officials to cut off underground cell phone service at several train stations. The reason for the cutoff? To disrupt the coordination of a flash mob aiming to interrupt train service as a protest for the killing of a 45-year-old man by BART transit police.

“Organizers planning to disrupt BART service on August 11, 2011 stated they would use mobile devices to coordinate their disruptive activities and communicate about the location and number of BART Police,” said the agency in a statement posted on its Web site. The statement continued:

A civil disturbance during commute times at busy downtown San Francisco stations could lead to platform overcrowding and unsafe conditions for BART customers, employees and demonstrators. BART temporarily interrupted service at select BART stations as one of many tactics to ensure the safety of everyone on the platform.

The planned protest centered around the shooting of Charles Hill, a transient killed by BART police officer on July 3rd. Hill had reportedly threatened the officer with knives and a bottle. Shooting witnesses claimed that Hill wasn’t running or lunging at the officer, but no video exists to verify those accounts, according to BART spokesman Jim Allison. The videotape from the train station is inconclusive.

This would have been the second demonstration to protest Hill’s death. On July 11, several people gathered on the train platform at the Civic Center Station at around 4:30 p.m. A march took place with protesters shouting “no justice, no peace.” Some of the demonstrators boarded a train and blocked the doors from closing for 10 minutes while others grappled with BART security guards attempting to stop them. One man also climbed on top of a train before being subdued. Two dozen police in riot gear arrived on the scene and broke up the demonstration, but several protesters moved to the 16th Street Mission Station where they also disrupted service.

During the melee at the Civic Center, commuters rushed to the Powell Street Station, which was subsequently closed due to overcrowding. At the 16th St. station, “Pigs Kill. Kill Pigs” was written in red paint on one of the columns near the entrance.

In keeping with the latest technological trends, a group calling itself No Justice, No BART set up a Web site with their version of the shooting posted on it, along with a promise that “a BART action like the last one is being planned for early August.” The site warned that “this action may not be publicly announced,” and that their main objective is to get “the BART police department shut down and disbanded.”

This then was the context for the decision to disrupt cell service, characterized by BART Police Lieutenant Andy Alkire as “a great tool to utilize for this specific purpose.” And even though the protest never occurred, Alkire was unapologetic. “I don’t believe it was a hoax,” he said. “We had pretty good intelligence that it was going to happen.”

Yet Alkire’s use of the word intelligence seemed somewhat questionable in light of a statement made by BART’s chief communications officer, Linton Johnson, at a media briefing inside the Powell Street Station last Thursday. “Today we heard rumors there might be protests, and there might be protests tomorrow,” he told reporters. “We don’t know.” Adding to the uncertainty was Johnson’s admonition that passengers remain aware of their surroundings as they commute–over the next month. “Report unsafe behavior, do not confront protesters,” he warned. “Stay out of harm’s way.”

Perhaps Johnson fails to note the irony of asking passengers to report unsafe behavior in the midst of a cell phone shutdown. A shutdown which seemingly conflicts with BART’s Web site claim that the agency “accommodates expressive activities that are constitutionally protected by the First Amendment to the United States Constitution and the Liberty of Speech Clause of the California Constitution (expressive activity)…” even as it contended 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.”

On Saturday, it was revealed the shutdown was not properly authorized, but presented as a “fait accompli” by BART’s chief of police, Kenton Rainey, to BART’s board of directors Thursday, according to BART official Lynette Sweet. Sweet was less than enthused with the decision. “This is a transit agency, and our job is not to censor people,” she said. BART spokesman Jim Allison disagreed. Noting that BART owns the underground network that provides the cell phone service, he contended that BART has the power to shut it down “in the physical sense” and “the legal sense.” Communications officer Johnson was even more defiant. “It is an amenity. We survived for years without cellphone service,” he said. “Now they’re b—-ing and complaining that we turned it off for three hours?”

Indeed “they” are. The American Civil Liberties Union (ACLU) characterized the agency’s decision as “glaringly small-minded,” noting that people in other countries “are using mobile devices to organize protests against repressive regimes,” and asking whether Americans are “willing to tolerate the same silencing of protest here in the United States?” The organization further notes that government shutdowns might not be limited to phone service. “These protestors were using public transportation to get to the demonstration–should the government be able to shut that down too?” they ask.

Aaron Caplan, a professor at Loyola Law School in Los Angeles who specializes in free-speech issues, focused on an equally vexing point. “We can arrest and prosecute people for the crimes they commit,” he said. “You are not allowed to shut down people’s cellphones and prevent them from speaking because you think they might commit a crime in the future.” Gene Policinski, executive director of the First Amendment Center, noted that there is a balance between free speech and public safety. “An agency like BART has to be held to a very high standard,” he said. Yet he conceded Caplan’s point. “First of all, it has to be an immediate threat, not just the mere supposition that there might be one. And I think the response has to be what a court would consider reasonable, so it has to be the minimum amount of restraint on free expression,” he added.

University of Michigan law professor Len Niehoff, who specializes in First Amendment and media law issues, contended the shutdown made no distinction between “peaceful or unpeaceful, lawful or unlawful,” expressions of free speech, which he characterized as “constitutionally, very problematic.” And while he noted that government has the right to break up demonstrations in areas where they are prohibited and/or pose a risk to public safety, “to keep people from talking about what they might or might not do, based on the idea that they might all agree to violate the law, is positively Orwellian,” he said.

Another protest, one based on the shutdown itself, not the shooting of Charles Hill, is ostensibly scheduled for Monday at 5 p.m. The online “hacktivist” group known as Anonymous has posted a notice to that effect on its Web site, saying it will be a “peaceful protest at Civic Center station to illustrate the solidarity with people we once knew and to stand up for your rights and those of your fellow citizens.” The site further notes that protesters will be wearing “’blood’ stained shirts for remembrance to (sic) the blood that is on the hands of the BART police.”

Anonymous has been linked to several cyber attacks around the world, including one which shut down the Master Card Web site in 2010. It has also been credited with successfully hacking Amazon, PayPal, MasterCard, Visa, Sony, major law and security firms, and foreign governments. The group is able to do so with a technique known as a “distributed denial of service attack” (DDoS). DDoS takes down a Web server when a lot of people deliberately overwhelm bandwidth capacity of that server. The closing statement on the group’s Web site: “We are Anonymous, We are legion, We never forgive, We never forget, Expect us.”

What Americans are being forced to expect is a daunting intersection between technology and anarchy — or totalitarianism. Ironically, it is the anarchy of technologically-organized flash demonstrations, or as we have seen in Britain, riots, that may lead to technologically-organized government suppression. And while such suppression would most likely to be imposed, it is not inconceivable that it may be demanded by the public itself, outraged by a constant string of disruptions to everyday life. Which parts of the Constitution Americans might be willing to sacrifice for “a little peace and quiet” is anyone’s guess.

How complicated is this issue? It could be said that BART did the wrong thing for all the right reasons — or the right thing for all the wrong reasons. Either way, one thing is certain: technology and the Constitution are on a collision course. It is a collision that may radically alter our conceptions regarding rights and responsibilities.


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