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A federal judge has ruled that the U.S. government’s “Internet kill switch,” a plan to deactivate wireless communications networks in a crisis, is not protected by secrecy laws and must be disclosed to the public.

The ruling on SOP 303 – the Department of Homeland Security’s Standard Operating Procedure – comes from U.S. District Court Judge James Boasberg in Washington.

The judge ordered the DHS to turn over SOP 303 to the Electronic Privacy Information Center, which brought the Freedom of Information Act case, within 30 days.

Boasberg ordered his actions stayed until it’s determined whether the government will appeal.

EPIC, nevertheless, declared victory on its website, explaining that it sought the documentation “to determine whether the agency’s plan could adversely impact free speech or public safety.”

The federal court explained that SOP 303 codifies “a shutdown and restoration process for use by commercial and private wireless networks during national crises.”

The government explains that such a move might become necessary under certain circumstances to “deter the triggering of radio-activated improvised explosive devices.”

When EPIC requested the information, DHS responded that it “had conducted comprehensive searches for records that would be responsive … [but was] unable to locate or identify any responsive records.”

However, as part of an appeal process, DHS admitted there was a record – “the very document EPIC had requested: Standard Operating Procedure 303.”

But DHS withheld some of the document because it contained personal information for “state homeland security officials,” claiming it would “disclose techniques and procedures for law enforcement investigations or prosecutions” and that it could “reasonably be expected to endanger the life or physical safety of any individual.”

The judge, however, discounted DHS’ arguments for preventing the release of information.

He wrote that the agency could not meet the requirement that a disclosure “would reveal ‘techniques and procedures for law enforcement investigations or prosecutions.’”

“In reaching its concluding, the court is not unaware of the potential adverse use to which this information could be put. Its ruling, furthermore, is no judgment on whether it is in the national interest for SOP 303 to be disclosed. If, in fact,the government believes release will cause significant harm, it has other options to pursue.”

He noted the government could seek relief from Congress.

EPIC explains that the “kill switch” protocol was adopted by the National Communications System but never released to the public.

“In a 2006-2007 Report, the President’s National Security Telecommunications Advisory Committee (‘NSTAC’) indicated that SOP 303 would be implemented under the coordination of the National Coordinating Center (“NCC”) of the NSTAC, while the decision to shut down service would be made by state Homeland Security Advisers or individuals at DHS. The report indicates that NCC will determine if a shutdown is necessary based on a ‘series of questions,’” the organization reported.

EPIC documented when the procedure was used after a July 3, 2011, shooting by a Bay Area Rapid Transit officer in San Francisco of a homeless man, Charles Hill.

In the aftermath, a protest “was cut short after BART officials cut off all cellular service inside four transit stations for a period of three hours. This act prevented any individual on the station platform from sending or receiving phone calls, messages, or other data,” EPIC reported.

That, the organization said, “set off a renewed interest in the government’s power to shut down access to the Internet and other communications services.”

“A 2011 Report from the White House asserted that the National Security Council and the Office of Science and Technology Policy have the legal authority to control private communications systems in the United States during times of war or other national emergencies. The Federal Communications Commission plans to implement policies governing the shutdown of communications traffic for the ‘purpose of ensuring public safety.’ Also, on July 6, 2012, the White House approved an Executive Order seeking to ensure the continuity of government communications during a national crisis. As part of the Executive Order, DHS was granted the authority to seize private facilities, when necessary, effectively shutting down or limiting civilian communications,” EPIC documented.

EPIC then wanted to know the existing procedures, what would decide whether an emergency existed and “any executing protocols.”

WND reported later when a report for the Organisation for Economic Cooperation and Development by the London School of Economics and the University of Oxford said a “kill switch” would actually cause more problems than it would prevent.

That report said that in most emergencies “you would want to give priority to doctors, but most doctors and their surgeries use the same downstream Internet facilities as the bulk of the population and there would be no easy way to identify them.”

“Localized Internet switch-off is likely to have significant unwanted consequences.”

Judicial Watch, a government watchdog organization, said arming the president with an Internet “kill switch” easily could be misused to silence free speech “under the pretext of a national emergency.”

There already is an organization set up to manage such emergencies, and it includes personnel from the National Security Agency, Army, Navy, Marines, Air Force and policymakers (politicians), according to a report from WND columnist Andrea Shea King.

The administration agency, dubbed CYBERCOM, is set up within the Department of Defense. It says it is both a defense and an offense in that it can engage in preemptive “strikes” intended to disrupt threats, she reported.

 

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