Opinion split on authority to shut down wireless in emergency

Supporters cite public safety issues, opponents call it unconstitutional

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Opinion appears sharply divided on whether the government and law enforcement should have unchecked authority to initiate a localized or citywide wireless service shutdown for public safety purposes.

In April, the Federal Communications Commission (FCC) issued a notice seeking public comments on the issue. In its notice the FCC noted that interruption of wireless services by the government, however brief or localized, raised significant legal and policy questions.

"We are concerned that there has been insufficient discussion, analysis, and consideration of the questions raised by intentional interruptions," the FCC had noted in seeking public feedback on the need for new procedures for handling such shutdowns.

The one-month period for filing public comments ended Wednesday. A review of the responses to the FCC requests over the past month shows that many support the idea of the government having the ability to quickly shut down wireless services, but only as a matter of last resort and only in an extreme emergency.

Others however opposed the idea outright calling it unconstitutional and an example of prior restraint on free speech.

The FCC's inquiry stems from a controversial decision by San Francisco's Bay Area Rapid Transit District last August to temporarily cut off underground cell phone service to commuters in response to a planned protest against the shooting of a homeless man by Bay Area Rapid Transit (BART) police.

BART officials stoutly claimed the three-hour shutdown was necessary to maintain public safety. But outraged critics blasted the agency's actions as being unconstitutional and a threat to public safety because 911 emergency services were impacted as well.

The FCC at that time had noted it would look into the multiple issues raised by BART's actions.

In its response to the FCCs request for comments last month, BART's general manger Grace Crunican insisted that a temporary interruption of cellphone service is a necessary tool "under extreme circumstances where harm and destruction are imminent."

"For example, wireless devices may be used to detonate explosives. Such an explosion in a system like BART, with much of its approximately 100 miles of track located under either metropolitan downtown areas or the San Francisco Bay itself, would be devastating, not just for the passengers, but for the public at large," Crunican noted.

As an entity responsible for the safety of more than 350,000 passengers each day, BART "must have the tools at its disposal to protect that public from wrongful use of wireless devices," Crunican said.

It's a position that was supported by others such as CTIA, also known as The Wireless Association. The trade body expressed its significant concerns about wireless service interruptions and pointed to the risks they entailed.

At the same time, the CTIA noted, it "recognizes that in certain emergency situations a service interruption may be necessary to prevent or stop a life-threatening emergency."

The CTIA and others, such as AT&T, cautioned against the creation of new FCC controls or procedures for initiating intentional wireless shutdowns. They noted that the FBI, the Department of Homeland Security (DHS) and others already have the standing authority to shutdown wireless services in an emergency through a protocol known as Standard Operating Procedure 303 (SOP 303).

SOP 33 is an emergency wireless protocol that was created in the aftermath of the London bombings in July 2005. The little known protocol was developed under President's Bush's National Security Telecommunications Advisory Committee and already provides a process for wireless shutdown and restoration during a crisis.

"CTIA supports the approach outlined in SOP 303, as it enables authorities to balance the benefits of maintaining wireless service for potential victims of an emergency against the harms that could be perpetrated by maintaining connectivity," association representatives noted in their comments to the FCC. "There is no need for the Commission and industry stakeholders to undertake a complicated, burdensome process to explore alternative means."

Others such as the American Civil Liberties Union and the Center for Democracy and Technology (CDT), meanwhile, rejected outright the notion of unchecked wireless shutdowns by government and law enforcement. They claimed that any government directed wireless shutdowns would infringe upon First Amendment rights to protected speech and impose unconstitutional prior restraints on speech.

"The mobile-phone-as-a-weapon scenario must never be used as a pretext to suppress First Amendment Activity," the ACLU noted in its comments. While there are some exceptional scenarios where a "narrowly focused" wireless shutdown could mitigate an imminent threat, "great care must be taken to avoid pretextual use," it said.

Interruptions should be strictly targeted at the device that poses the threat and not to an entire network or portion of it, the ACLU said.

The CDT lamented the lack of public information on SOP 303 and said it is unclear if the protocol meets First Amendment requirements for when the government engages in piror restraint on free speech.

"The government should not have the secret, unchecked authority to turn off the networks through which we all communicate every day," it noted.

Jaikumar Vijayan covers data security and privacy issues, financial services security and e-voting for Computerworld. Follow Jaikumar on Twitter at  @jaivijayan or subscribe to Jaikumar's RSS feed . His e-mail address is jvijayan@computerworld.com.

See more by Jaikumar Vijayan on Computerworld.com.

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