Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger

The Electronic Privacy Information Center recently won the first round of a court action asking that the Department of Homeland Security be required to disclose its plans to pull the plug on regional or national mobile telephone and internet communication systems pursuant to its Standard Operating Procedure 303.

“In the classicly-rendered case, DHS has argued that shutting down entire communication networks might be necessary in order to prevent the detonation of radio-controlled bomb or explosive device.

However, siding with the Electronic Privacy Information Center (EPIC), which brought a suit demanding more transparency for the DHS program known as “Standard Operating Procedure 303” (or SOP303), the federal judge at the US District Court for the District of Columbia ruled that because the release of the protocol could not reasonably be seen as harming law enforcement “investigative techniques or prosecutions” it’s cited reasons for keeping the details of the program secret did not hold up.” Common Dreams

The so-called SOP 303 could allow DHS to cut-off all internet and mobile phone communications at a regional level or a national level if it determined that there was a national security concern.  We have already seen this government tactic used in Oakland in 2011 and that alleged over reach by the Bay Area Rapid Transit authorities may be the reason for EPIC’s lawsuit. 

This SOP 303 was created on March 9th, 2006 by the National Communications System.  As you may have guessed, the procedure was never released to ordinary Americans.  Here is some background on SOP 303.

“Standard Operating Procedure 303 codifies “a shutdown and restoration process for use by commercial and private wireless networks during national crises.”

On March 9, 2006, the National Communications System (“NCS”) approved SOP 303, however it was never released to the public. This secret document codifies a “shutdown and restoration process for use by commercial and private wireless networks during national crisis.” 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 Advisors or individuals at DHS. The report indicates that NCC will determine if a shutdown is necessary based on a “series of questions.”

On July 3, 2011, a Bay Area Rapid Transit (“BART”) officer in San Francisco shot and killed a homeless man, Charles Hill. The officer alleged later that Hill had attacked him with a knife and that he had acted in self-defense. The death sparked a major protest against BART on July 11, 2011. Though the protests disrupted service at several transit stations, no one was injured. A second protest was planned one month later, but 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.

The incident with BART has 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.” Common Dreams

The background information noted above was a wake up call for me.  Just how does the government decide when the internet should be “killed”?  As you can imagine, the answer to that question was not disclosed by the government and was one of the reasons why EPIC filed their FOIA lawsuit.  Until citizens have access to the SOP 303, we will not know how to even defend the government’s future use of the procedure.

It is also important to note that the court allowed DHS 30 days to provide the full and non-redacted documents or to file an appeal of its order.  One can only hope that the government isn’t allowed to use its blanket national security label on any subsequent appeal to shelter the provisions of SOP 303.

With this kind of allegedly unfettered power, the government can put us all into a communications black hole.  When you consider how vital mobile communications and the internet has been in recent international uprisings and national protests like Occupy Wall Street, it is easy to see how this “procedure” could be abused and our rights of free expression chilled, if not mortally wounded.

As you will note above, this SOP 303 was initiated during the Bush Administration, but seemingly welcomed with open arms by the Obama Administration.  The protection of our First Amendment rights is a non-partisan issue and citizens on both sides of the aisle should be concerned.  What do you think will happen if the government appeals this ruling?  Will Congress take bipartisan action to force the disclosure as it has started to do in response to the NSA spying over reach?

Without communications and access to the internet, the American public can be kept in the dark figuratively and literally.  Will this issue eventually find itself in front of the United States Supreme Court?  What can we as individuals do to make sure the government cannot take away our rights to express our ideas?  Are there technological methods that can be utilized to protect our access to mobile phones and the internet?  Let’s hear what you think!

Additional References:  DHS FOIA response;

District Court Order.