CDT and Allies Take Aim at Government’s Secret Protocol For Wireless Shutdowns
Did you know the government has a secret emergency protocol for initiating citywide shutdowns of cell phone networks? It’s called Standard Operating Procedure or “SOP” 303, and as CDT and its allies explained in a filing to the FCC yesterday, it’s flatly unconstitutional.
Yesterday, CDT, the Electronic Frontier Foundation, Public Knowledge and other allied groups filed our second round of comments responding to the FCC’s inquiry into wireless service interruptions. In our first round of comments we outlined the serious First Amendment problems posed by government shutdowns of wireless networks and urged the FCC to clearly regulate against the practice. Our reply comments address a variety of issues, summarized here, but one key goal was to put the spotlight on SOP 303, which several other comments filed with the FCC—including from cell phone carriers—endorsed as a reasonable procedure.
The details of SOP 303 are secret. We literally have one paragraph of description in one government report to go on. But even based on that description it’s clear that the protocol fails to meet the First Amendment’s strict requirements for when the government engages in a prior restraint on speech. And most certainly, as we described in detail in our first round of comments, a wireless service interruption will restrain the lawful speech of hundreds, thousands, or even millions of Americans.
As we explain in our comments, filed yesterday:
As summarized in a report by the National Security Telecommunications Advisory Committee (“NSTAC“)
See this report at page 155: [T]he NCS approved Standard Operating Procedure (SOP) 303, “Emergency Wireless Protocols (EWP),” on March 9, 2006, codifying a shutdown and restoration process for use by commercial and private wireless networks during national crises. Under the process, the NCC will function as the focal point for coordinating any actions leading up to and following the termination of private wireless network connections, both within a localized area, such as a tunnel or bridge, and within an entire metropolitan area. The decision to shutdown service will be made by State Homeland Security Advisors, their designees, or representatives of the DHS Homeland Security Operations Center. Once the request has been made by these entities, the NCC will operate as an authenticating body, notifying the carriers in the affected area of the decision. The NCC will also ask the requestor a series of questions to determine if the shutdown is a necessary action. After making the determination that the shutdown is no longer required, the NCC will initiate a similar process to reestablish service. The NCS continues to work with the Office of State and Local Government Coordination at DHS, and the Homeland Security Advisor for each State to initiate the rapid implementation of these procedures., SOP 303 provides that State Homeland Security Advisors are empowered to decide whether or not to terminate wireless service, whether in a localized area or “within an entire metropolitan area,” and those decisions are approved and relayed to service providers not by the courts but by the Department of Homeland Security’s National Coordinating Center for Telecommunications (“NCC“). There is no provision for any judicial review, whether before or after the service interruption, and certainly no provision for notice and opportunity to challenge for affected cell phone users.
Indeed, there is no court in the loop at all, at any stage in the SOP 303 process. The Executive Branch, untethered by the checks and balances of court oversight, clear instruction from Congress, or transparency to the public, is free to act as it will and in secret. In fact, it already has: the NSTAC report notes that U.S. authorities in July 2005 initiated the shutdown of wireless services in multiple transit tunnels in New York City but fails to mention any court review before or after, and the details of the shutdown remain secret. Recent press coverage indicates that there have been additional wireless service interruptions since, yet the details of those shutdowns—and the details of what if any judicial oversight attended them—are also shrouded in mystery.
This state of affairs cannot be allowed to stand. The government should not have the secret, unchecked authority to turn off the networks through which we all communicate every day. We reiterate our original call to the FCC to ensure through rulemaking that the federal government will not, and that state and local governments cannot, interrupt wireless services as a matter of policy in an emergency. Because even in an emergency, wireless shutdowns are never the right choice.
