by Kevin Bankston
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:
Source: https://www.cdt.org/blogs/kevin-bankston/3105cdt-and-allies-take-aim-government%E2%80%99s-secret-protocol-wireless-shutdowns
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")1, 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.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.
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.
Source: https://www.cdt.org/blogs/kevin-bankston/3105cdt-and-allies-take-aim-government%E2%80%99s-secret-protocol-wireless-shutdowns