Paul's Comments

Office of the Board of Directors                                       August 26, 2011
Washington Metropolitan Area Transit Authority
600 5th Street NW
Washington DC 20001

Recommendation No. 2011-028

Pursuant to the provisions of Article 62(b) of the Washington Metropolitan Area Transit Authority Compact I hereby file a request with the Board of Directors for a hearing with respect to the service rendered with the facilities of the Authority. The remainder of this letter explains the matters and things on which the request relies, and deals with the Authority's potential actions to intentionally disable cell phone service in Metrorail stations and the need for an explicit, published policy indicating when such an action would be permitted, and a recommendation to add preparations in the event cell service is not available in an emergency and to prepare for it in emergency drills.

I only found out this morning that on Thursday, August 11, San Francisco's Bay Area Rapid Transit (BART) system decided to disable cell phone service in certain stations for several hours, not because of an emergency condition or something that was happening at the time, but because some people had posted an announcement on a web page stating that they were intending to conduct a protest in rail stations over the alleged killing of a passenger by BART Transit Police. I suspect one of the issues being that they might have stated they intended to use cell phones while in the BART system to coordinate protests.

BART claimed the action was necessary to protect the public from some unspecified danger and to prevent what it claimed was an "illegal" protest. While protecting the public from the possibility of injury is an important goal, an even more important point needs to be made: no actual protest took place; BART essentially chose to cut off service because there might have been a problem.

Not only that, but apparently BART decided that it was merely for courtesy reasons that it chose to inform the cell carriers that their service was being intentionally disrupted, and it was under no obligation to tell them anything; apparently the carriers were left in the dark over this matter.

A number of questions have been raised over these issues. While there is no constitutional right to have cell phone service in a subway system, once a government agency decides to allow service to operate, there are First Amendment issues regarding the use of the service. The comparison here is that if someone in my home decides to use his cell phone to say unflattering remarks about me, I have the right to choose to require he stop doing so or leave, because the 1st Amendment does not apply to private individuals or non-government entities. However, as a government agency, a transit authority is subject to the First Amendment and does not have this luxury, e.g. if a Transit Police officer hears someone on their phone in a normal voice talking about how bad the service is and urging people get together to have the Authority disbanded and replaced by something else, they cannot stop this person from doing so or order them to leave.

Now, given that this is the Nation's capital and there are even more serious threats that might occur here than would occur just about anywhere else in the country, there are a number of conditions which might require in some cases that WMATA might, at some point, need to intentionally disable cell phone service in one or more stations or areas such as tunnels because of an emergency or unusual circumstance, there should be a standard policy clearly stating under what conditions it would undertake such actions and for the Authority to make this policy a matter of record.

I have made a cursory search of WMATA's web site and have found many documents regarding its attempts to increase reach of cell service in the stations and trains, and in this, the Authority is to be commended. But there is not one document discussing under what circumstances the Authority might intentionally disable cell service. Perhaps the subject never came up or it wasn't thought it ever would be necessary.

With the incident on BART's system occurring it is clear that the subject has now come up and this issue may very well become necessary.

A decision that it is necessary to do so might occur at some point, and the making of a decision whether it is appropriate to do so is an extremely important matter, and not something that should be made on an ad-hoc basis.

Therefore, the matter and things upon which this request relies is the recommendation that the Washington Metropolitan Area Transit Authority establish a policy under what circumstances the authority would intentionally disable cell phone service (under what emergency conditions, for non-emergency scheduled maintenance and upgrades, etc.), what areas would be subject to disruption, which person(s) would be authorized to make a decision to do so, the persons and entities to be notified when and if such an action were to take place, how much advance notice - including posting notice in stations - is to be made for non-emergency conditions (like equipment replacement), how soon after an emergency occurs are the appropriate parties to be notified, such other conditions and specifications as the authority decides are necessary to be included in this policy, and that this policy be made public as well as published on the Authority's website.

I would also like to recommend the reverse issue should also be considered and the potential be included as far as when the Authority conducts emergency training, or emergency drills, that it make efforts from the opposite site, by doing disabling of cell phone service as if an attacker had decided to operate cell phone jamming equipment and how this would affect the Authority and other emergency personnel to be able to coordinate if they were unable to use cell phones, and whether standby equipment such as temporary cell phone boosters ("microcells") should be available in emergencies and what other emergency preparations be made in the event either cell phone service must be intentionally disabled or where for some reason cell phone service becomes unavailable by accident (as happened immediately after this week's earthquake) or because of attacks by third parties.

Thank you for your time in reading this letter and I hope you will consider my recommendations.

Sincerely Yours,
Paul Robinson
"A computer programmer and Notary Public in and for
the Commonwealth of Virginia, at large, and the
State of Maryland in and for Prince George's County."

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