The federal government has a plan to kill all cell-phone service in certain areas when officials decide it’s necessary.
But you aren’t allowed to see the plan.
And the fact that you cannot learn what might justify its use or who has the authority to push the kill button is the focus of a new case before the U.S. Supreme Court.
Pulling the plug on local cellular service already has been done. In 2011, officials with the Bay Area Rapid Transit system in San Francisco cut off service inside four transit stations for three hours after a BART security officer shot and killed a homeless man and protests erupted in reaction.
The shutdown order was made when a protest organizer sought to coordinate activists via cell phone.
The San Francisco shutdown, which is supposed to be controlled by the Department of Homeland Security’s Standard Operating Procedure 303, prevented anyone inside the transit stations “from sending or receiving phone calls, messages, emergency notifications and other transmissions,” according to the Electronic Privacy Information Center, or EPIC.
EPIC now is taking its fight for access to the SOP303 plan to the U.S. Supreme Court after a district judge agreed the information should be made public but an appeals court disagreed.
The plan was adopted in 2006 by the National Communications System, but it never has been released to the public, even though it codifies a “shutdown and restoration process for use by commercial and private wireless networks during a national crisis.”
Its existence was affirmed in a 2011 report from the Obama White House that asserted 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.”
In fact, the White House, through executive order, granted DHS “the authority to seize private facilities, when necessary, effectively shutting down or limiting civilian communications,” EPIC said.
But information such as the text of the policy and the protocols for when cell service is taken over need to be made public, the organization argues.
In a request to the U.S. Supreme Court to hear and reverse the appeals court’s decision, EPIC explains it was unable to obtain details because the government claimed an exemption to the federal Freedom of Information Act allowed it to keep the program secret.
The government’s claims were based on assertions FOIA exemptions 7(E) and 7(F) allow withholding of “techniques and procedures for law enforcement investigations or prosecutions” and information that could endanger someone.
DHS argued that allowing the public to see the plan would “enable bad actors to insert themselves into the process of shutting down or reactivating wireless networks by appropriating verification methods and then impersonating officials.”
EPIC said while withholding names of witnesses or sources is a valid standard, precedents from other courts don’t allow the vast withholding that DHS demands.
The DHS plan “contravenes not only the basic structure and purpose of the Freedom of Information Act, but also goes against this court’s clear guidance,” EPIC said.
The Supreme Court should review and reverse the result in order to remove “overly expansive interpretations” of the law, which violate congressional intent, EPIC said.
The group warned that the existing ruling could “create a new catchall exemption for any record related to a security procedure.”
BART had justified its shutdown of cell service because a protest “could lead to platform overcrowding and unsafe conditions for BART customers, employees and demonstrators.”
The transit authority said it “accommodates” constitutionally protected activity but said it could not allow assemblies or demonstrations in areas “reserved for ticketed passengers who are boarding, existing or waiting for BART cars and trains.”
EPIC is an independent non-profit research and advocacy center for privacy issues.
EPIC President Marc Rotenberg said the secret DHS policy “to shut down cell phone service threatens public safety, open government and First Amendment freedoms.”
Forbes noted the fight is over “a document that is vitally important to the public’s right to the underlying policy that regulates the deprival of vital communications services.”