Citing the potential threat to law enforcement and the general public, correctional facility officials have pushed for the FCC to address the issue of contraband phone use in prisons. In a recent meeting hosted by the FCC, Department of Justice officials and local law enforcement argued for aggressive technological approaches to addressing contraband phones.
Now, the FCC is considering a mandate for hard kill switches on all wireless devices. This proposal would provide correctional facility officers with the ability to permanently disable (or “brick”) a phone upon request. However, the broad scope of this proposal will create new security vulnerabilities, and the lack of judicial review would violate established protections for due process. CDT has joined our colleagues at the Electronic Frontier Foundation (EFF) in opposing this proposal and expressing our concerns in an ex parte filing to the FCC.
The mandatory installation of a hard kill switch on all wireless devices would create an explicit security vulnerability on every phone.
From a technological perspective, the mandatory installation of a hard kill switch on all wireless devices would create an explicit security vulnerability on every phone. While corrections officers are seeking a method to disable contraband phones within the confines of their facilities, this vulnerability will not exist in a vacuum. It will be difficult to secure, and malicious actors may hijack or create their own hard kill signals, regardless of where the phone is being used.
The use of a hard kill switch also poses serious risks to users when the wrong phone is identified. If a device is misidentified as contraband and subsequently disabled, the owner of the device will be permanently deprived of their device without any warning or explanation. This would represent more than a minor inconvenience for a handful of people–95 percent of Americans now rely upon a cellphone for communication and information. Under these circumstances, the use of a hard kill switch would cut off access to friends, family, and emergency services. Ultimately, this mandate represents an overly broad and severe technological remedy that will only undermine the security and integrity of wireless devices.
The FCC must avoid any technological mandates that would undermine the security of all cell phone users (aka everyone in the country) and needs to include due process safeguards in any proposal.
Additionally, the proposal fails to provide any form of judicial review to enable oversight of the process and ensure accuracy. Instead, the process outlined by the Commission would shoehorn providers into the role reserved by judges. Providers would be asked to evaluate whether a request meets the necessary legal criteria without the procedural structure, experience, or institutional authority of the courts. By incorporating judicial review, judges would be empowered to lend their expertise and critically assess claims from law enforcement–potentially providing a valuable check against misidentification.
Most importantly, courts provide legal safeguards and preserve fundamental due process rights. When correctional officials activate the hard kill switch, they are permanently disabling the phone–effectively destroying it and depriving an individual of their property. And although prisoners are entitled to fewer due process protections, the proposal outlined by the FCC may end up disabling phones found outside the correctional facility, placing the legitimate devices of law-abiding individuals at risk.
In working to address the issue of contraband phones in prisons, the FCC must avoid any technological mandates that would undermine the security of all cell phone users (aka everyone in the country) and needs to include due process safeguards in any proposal.