The U.S. Court of Appeals in Washington DC has ruled that the Department of Homeland Security’s procedure for shutting down cell phone service during a declared emergency can remain secret.
The lawsuit was brought by the Electronic Privacy Information Center (EPIC) after the DHS failed to release its criteria for network shutdowns following an incident in 2011 when government officials in San Francisco disabled cell phone service during a peaceful protest. The demonstration was against the police killing of Charles Hill, a homeless man shot dead by a Bay Area Rapid Transit (“BART”) officer.
A federal judge initially ruled in EPIC’s favor but the DHS won the case on appeal. However, the federal agency may still have to disclose some portions of the protocol.
All that is known about the DHS procedure for the cellphone service kill switch is its name – SOP 303 – which “provides detailed procedures for the [NCC] to coordinate requests for the disruption of cellular service,” including kill switches for, “commercial and private wireless networks during national crises.”
EPIC’s FOIA request and subsequent lawsuit attempted to uncover the full text of Standard Operating Procedure 303 and the pre-determined “series of questions” that determine whether or not a shutdown is necessary.
After the DHS initially claimed that the agency was “unable to locate or identify any responsive records” in relation to SOP 303, a district court ruled that the feds had improperly withheld the information and ordered its release. The DHS subsequently filed an appeal challenging the lower court’s decision.
EPIC filed a response to the DHS’ appeal, identifying the issue as, “Whether the Department of Homeland Security’s policy for coordinating the ‘disruption’ of wireless communications networks during a peaceful protest is exempt from disclosure under Exemptions 7(E) or 7(F) of the Freedom of Information Act, 5 U.S.C. § 552(b) (2012).”
The DHS won the appeal on the dubious basis that revealing the information about the cellular kill switch, “could reasonably be expected to endanger the life or physical safety of any individual.”
The White House currently asserts that it has the legal authority to control private communications during times of national crises, while the Federal Communications Commission is also preparing to implement policies that will enable the shutdown of communications for the “purpose of ensuring public safety”.
A July 2012 executive order also hands the Department of Homeland Security the power to seize private facilities in order to limit civilian communications.
The ruling is sure to spark more concerns that the DHS is preparing to use such powers to restrict peaceful protest. Documents emerged in 2013 which indicated that the federal agency, founded after 9/11 in the name of fighting terrorists, “has a policy of spying daily on peaceful activists and protesters in the United States.”
“Laughably DHS claims “bad actors” could shutdown or reactivate the wireless network by impersonating officials, reports the MassPrivateI blog. “Who they are and what do they look like? You’re not allowed to know. Just know that’s the B.S. reason the public is being spoon fed.”