Cell jamming bill would protect our free speech

California lawmakers are putting the finishing touches on a law that would prohibit public agencies from disabling cellphone service without probable cause and a court order. This bill is a much-needed free speech protection that was born out of a dark day at BART.

On Aug. 11, 2011, the transit agency shut down its cellphone service in an attempt to thwart a potential protest that never materialized. Since downtown BART stations are underground and regular cell tower signals do not reach there or beneath the Bay, service there is reliant on the transit agency.

The backlash against BART was swift. Groups stepped up to protest. Critics compared the agency’s tactic to those used by dictatorships in the Middle East. BART went back and devised new guidelines to follow for shutting down service. That policy, which was approved in December, would only allow the agency to shut down service in its stations if officials believed there was a threat to service or illegal actions were imminent. But agency officials would still be able to make the decision without a court order.

However, a bill by Los Angeles state Sen. Alex Padilla that was approved by the Assembly on Thursday would ban agencies statewide from cutting off cellphone service without probable cause and a court order. The law also would pre-empt local policies, such as the one BART put in place.

“For decades, California law has required a court order to interrupt or shut down traditional telephone service,” Padilla said in a statement. “SB 1160 would extend these protections to the modern telecommunication networks and prohibit the interruption of service by local governments without court review.”

Supporters of Senate Bill 1160 cite access to emergency services as the primary reason to maintain cellphone networks. But they also discuss the free speech implications of allowing agencies to cut off communications.

“Open and available communication networks are critical to public safety and a key element of a free and open society. SB 1160 will protect our right of free speech,” Padilla said.

BART has a difficult job in safely shuttling more than 350,000 riders around the Bay Area each day. Two of the rationales the agency cites for possibly shutting down communications services are risk to the safety of passengers or the substantial disruption of its services. The weakness with this argument is that it leaves agency officials in charge of shutting down cellphone service, potentially allowing First Amendment rights to be trampled without justification.

SB 1160 would put appropriate safeguards into place to maintain access to emergency services and protect free speech. Yet the bill still gives BART and other agencies a way to disable cellphone services in the event that such a drastic step is truly needed. The bill is headed back to the Senate after being revised in the Assembly, and senators should promptly reconcile the legislation and send it to Gov. Jerry Brown, whom we encourage to sign it.

There should never be a repeat of what BART did when it cut off cellphone service. And SB 1160 is a major step toward making sure that there is not.