CDT, PK, and EFF Wireless Shutdown Comments

CDT, Public Knowledge, and the Electronic Frontier Foundation led a coalition of civil liberties organizations in filing these comments in the FCC’s Inquiry into wireless service interruptions.  Prompted in part by the Bay Area Rapid Transit Authority’s shutdown last August of cell service in BART stations to prevent organizers from protesting BART, the FCC initiated an inquiry into whether government or private actors can lawfully act to interrupt wireless service in emergency situations.

Analyzing wireless interruption through constitutional and statutory lenses, we conclude that neither government — be it state, local, or federal — nor private parties can permissibly interrupt wireless service, and that such interruptions will likely do more harm than good in emergency contexts.

In particular, the First Amendment prohibits government action to suppress speech before it is made; these “prior restraints” on speech are among the most disfavored type of government regulation, and the government would have to meet an extraordinarily high bar to demonstrate that wireless interruption, with its broad collateral impact on protected speech, is necessary in a particular instance.