Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Weekend Contributor
You may not have heard of it before, but the government has the ability to shut off cell phone service at any time, under the guise of National Security. The Department of Homeland Security has an operating procedure known as Standard Operating Procedure 303( SOP 303) and it has been labeled as the cell phone “kill switch”.
I knew very little about the “kill switch” before today, but according to a recent Al Jezeera America article, the kill switch authority is being currently debated in Federal court.
“For nearly a decade, the U.S. Department of Homeland Security (DHS) has maintained a policy for unilaterally shutting down private cellular service, over an entire metropolitan area if necessary, in the event of a national crisis.
Adopted without public notice or debate, Standard Operating Procedure (SOP) 303, often referred to as the cellphone kill switch, has been shrouded in secrecy from its inception and has outraged some civil liberties groups battling to make the policy public.
A key hearing in that fight is set for next week.
“We have no clue what’s in it or what it’s about,” says Harold Feld, the senior vice president of Public Knowledge, a public interest advocacy group. In 2012 the Electronic Privacy Information Center (EPIC) filed suit in federal court seeking disclosure of information about SOP 303’s basic guidelines and policy procedures.
Using the argument that releasing any information about SOP 303 would risk public safety, the DHS prevailed in an appeals court after a lower court ruled in favor of making the policy public. In March of this year, however, EPIC’s petition for a rehearing of that appellate court decision was allowed to proceed, with the court issuing an April 27 deadline for the government to respond.” Reader Supported News
The government is fighting to keep the public in the dark about just who makes the decision to utilize the “kill switch” and what factors the decision maker(s) use to determine if there is a national security risk that requires the use of the “kill switch”. I think most of us can understand that the Department of Homeland Security (DHS) has a difficult job in keep all of us safe. However, I believe the government has relied upon the national security defense too liberally in this case.
One should not be surprised that the SOP 303 could very easily be misused and if the Obama Administration is allowed to keep these policies secret, the threat to civil liberties is palpable. The reason I believe that civil liberties could be threatened is because the “kill switch” has already been used to thwart free speech on a local level.
“Civil liberties groups fear that such far-reaching and unchecked power could be used simply to quell dissent. That’s exactly what happened in August 2011 when officials of Northern California’s Bay Area Rapid Transit system utilized its kill switch to temporarily shut off cellphone service in several subway stations. The shutdown wasn’t in response to a terrorist threat. Its purpose was to prevent a demonstration that organizers planned to hold in those stations protesting a fatal subway shooting by a BART police officer.” Reader Supported News
When you see the vast reach of social media and smart phones, it is not surprising that government officials may abuse the authority to prevent or disrupt ongoing legal demonstrations or attempt to prevent a legal demonstration as noted above in Northern California. Shouldn’t the authorities have a narrow authority and implementation process before the First Amendment rights of thousands or even millions of people are impacted?
We have already seen how smartphones and social media have aided citizens in Northern California, but Syria and Egypt blocked cell phones and the internet in response to citizen protests and demonstrations. With this background of a “kill switch” being utilized to thwart public demonstrations here and abroad, the Obama Administration should at least tell us who can decide to use the switch and under what narrow guidelines can it be used.
Are we asking too much? Is the First Amendment at risk without us knowing how and when this extreme measure can be legally used? When we know that SOP 303 was secretly developed in a very hasty manner after the London subway bombings, isn’t that another reason to be concerned? What do you think?
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There is no distinction under the Constitution between shutting down a cell phone network to prevent the organization of a demonstration and shutting down a printing press to prevent the publication of leaflets for the same purpose.
Exactly!!!. The purpose of the First Amendment (IMO) is to allow the people to freely communicate and exchange ideas. Even ideas that are unpalatable and especially ideas that are not necessarily supportive of the Government are covered under the 1st Amendment. The right to assemble and organize.
Leaflets and the printed word were the venue in the times that the Constitution was written. Today it is the Internet and other electronic methods.
There shouldn’t be a kill switch for cell phone service, never mind who gets to use it.
BART was unfairly criticized in that 2011 situation. I was living in the area at the time. They killed the extra service they paid for to enhance cell phone coverage for BART passengers in the stations and on trains, but they didn’t interfere with normal cell phone coverage. They just turned off the enhanced service they provided to their riders (at no cost to passengers) for a short period of time so it couldn’t be used for demonstrators to coordinate, but they did not interfere with the coverage provided as normal course of business by the mobile providers.
Demonstrators complained they couldn’t get service within BART’s stations, but that was a function of their mobile providers not providing coverage without BART paying extra to support it. But, BART fell on the sword quickly after everyone complained about it, so it’s become a story of how they interrupted everyone’s coverage to thwart the protests rather than the truth that they just didn’t allow a service they provided for free (but at a cost to them) to be used for coordination.
I completely disagree with a government kill switch, but comparing it to the BART situation is not accurate.
Excellent post, rafflaw, And disturbing. I’ll ignore the birther rants, neo-Confederate revisionism and Second Amendment survivalist fantasies and get to the point.
There is no distinction under the Constitution between shutting down a cell phone network to prevent the organization of a demonstration and shutting down a printing press to prevent the publication of leaflets for the same purpose.
Smart phones are the printing presses of the 21st century. The action by BART in 2011 was an unconstitutional prior restraint in my view. And governments don’t get to violate the First Amendment through the adoption of standard operating procedures.
raff
Darren informed me that somehow my comments have been going into the junk folder… sgh. I’m sure someone could write a poem about that… LOL.
Another example of BIG government getting bigger & BIGGER! When will we learn to start taking away Big government’s power?
Brad S.: It is an unenumerated power. The Constitution speaks of Powers and those pertain to the state or federal government. Rights are conferred upon people. The “unenumerated” rights aspect is usually discussed in the context of people or individual human rights being taken or squashed by government. The unenumerated rights mostly derive from the Ninth Amendment. The right of privacy.
So our unenumerated rights of privacy as humans are being taken by the government powers that be. Be it the NSA, CIA, KGB, FBI etch. Wait a minute– KGB is from Russia.
So, where you might ask is the power to take away our rights of privacy set forth in the Constitution? The Framers did not have kill switches so the power was not so expressly set forth. But I bet that someone will suggest that the power is somehow provided for in the Constitution.
We people (and dogs) have a right to bear arms. We might need them. One more 9/11 and all of our rights will be taken from us. If you have a bear nearby you might want to arm him/her too. I think the Framers were dyslectic and meant to say in the Second Amendment: the right to arm bears. Anyway, that is an unenumerated right. The right to arm dogs goes without saying.
Where it the right for the federal government to do this enumerated in the constitution?
It gets better: In LA, and probably other cities too, they’re building a parallel government-only cell phone network. One gets turned off, one doesn’t.
PCS, Obama and Prof. Turley, know the Constitution, its history and its origins. They also know the truth.
NEWSPEAK:
Lincoln supported and defended the Constitution. NOT!
Lincoln’s amendments are constitutional and should not be rescinded and vacated just as the 18th Amendment was repealed by the 23rd. NOT!
Obama is eligible – his term cannot be rescinded and vacated?
What?
Preposterous!
The NCAA rescinded and vacated USC’s titles and championships.
Which is a higher priority. Football?
The SCOTUS is of lesser import and lower rank than the NCAA or USC.
Has the SCOTUS ever heard of the Founders’ constant reference to the Law of Nations, 1760? Has Obama? Has Prof. Turley? We all learn from something; some teacher; some mentor; some text. The Founders learned from the Law of Nations. They read and spoke French and wrote letters of thanks for their precious copies of the Law of Nations, as George Mason declared “the Common Law of England is not the law of the United States.”
Constitution:
“No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President…”
Law of Nations:
“The natives, or natural-born citizens, are those born in the country, of parents who are citizens.”
____________________
Law of Nations, 1760
§ 212. Citizens and natives.
“The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”
Well, there has just been a shooting in Dallas at a Mohammad Art exhibit. The gunmen are dead. One security guard is wounded. No cell phones were shut down.
Squeeky Fromm
Girl Reporter
1984 or Brave New World, which is it?
PCS, law? What law? We don’t need no stinkin’ law.
Let’s ask the good professor to tell us if Lincoln, the President, was supposed to obey the law.
You know, the NCAA rescinded and vacated USC’s titles and championships because, after investigation, it was found that the NCAA rules said one thing and USC did another.
When we investigate Lincoln, we find that the Constitution said one thing and Lincoln did another. Lincoln’s “Reign of Terror” should be legally condemned and its unconstitutional acts rescinded and vacated.
As we observe the retroactive adjudication by the NCAA against USC, we are impressed by the NCAA’s desire to assure the full and correct implementation and enforcement of rules, contemporaneously and in perpetuity, and to take appropriate corrective action.
It is exponentially more important that governance comply with founding documents than for a football team to be within the rules of the game.
Lincoln made a mockery of the Constitution.
@PaulCS
No, it was Judge Roy Bean, I think???
https://squeekyfrommgr.wordpress.com/2011/05/06/bin-laden-the-texas-defense-your-honor-he-nee/
Squeeky Fromm
Girl Reporter
@bam bam
All I have is the Texas Revised Version of the Bible, and it reads;
Exodus 20:13 Thou shalt not kill anybody that don’t need killing!
Sooo, I think you are right.
Squeeky Fromm
Girl Reporter
Squeeky – is that the version translated by Clint Eastwood.
Why in the world would anyone respond to anyone who considers himself a dog?
BarkinDog
You do realize, don’t you, that the original language for the Commandment was not English, don’t you? Don’t let the movie The Ten Commandments fool you. I know that you only understand dog biscuits, but the true meaning of the Commandment is gleaned from the original text. A truer interpretation, for the wording, is that one is prohibited from murdering. The word for kill is not used. For example, the Bible allows one to kill for food. It is not considered murder to kill for food. There is no absolute prohibition against killing. There is a distinction made between killing and murdering, but that may be well above your doggie ears. Don’t trust me. I am no Biblical scholar, but a quick google of the actual meaning of the sixth Commandment may convince you. Can dogs google?
bam bam – there is no reason that using Dragon Speak that a dog could not Google.
bam bam: The Sixth Commandment says: Thou Shalt Not Kill.
It does not say: Thou Shalt Not Murder. The Sears Roebuck version may say it your way but your way is the highway when your time comes at the Pearly Gates and you were a violator. So, prepare to meet your maker. Well, your undertaker first and then your Maker. Its not fried chicken, its Shake N Bake.
The example of BART killing the cell phone reception in its systems for fear that cellphones would be used to organize a protest, most likely in the system, is a perfect example of responsible use of this option
Actually, this is a perfect example of why we should NOT let the government have a kill switch on the phones OR the internet.
Who is to determine which protests are good or bad, which ones should be “allowed” and which ones “forbidden”. Tea Party = bad? so we stop them? Liberal groups? Conservative groups? People protesting against the government? There are many reasons the government would want to be in charge of determining who gets to have a voice and who doesn’t.
This way leads to tyranny and dictatorship.
While I may not agree with the protest being put on, the government does NOT have the right to pick and chose who gets to demonstrate or to put major obstacles in their way.
Of course, if they had a kill switch in Baltimore, the so-called Purge — coordinated via cell phones — might not have happened.