Finally, Homeland Security Has to Explain Why and When It Can Kill Cell Networks

A Washington, DC-based government transparency group won an injunction against the Department of Homeland Security that could require the agency to divulge when it has the authority to shut down cell phone networks during an emergency, and the methods by which they’d do it.

Monday afternoon, James Boasberg, a US District Judge in DC, ordered DHS to turn over Standard Operating Procedure 303, a set of instructions put into place on March 9, 2006, “codifying a shutdown and restoration process for use by commercial and private wireless networks during national crises.”

Boasberg ruled that DHS “withheld the lion’s share” of the one document that it gave the Electronic Privacy Information Center in response to the organization’s FOIA request seeking more information on SOP 303, and that the FOIA exemptions claimed by DHS—that the document described a technique for a police investigation or prosecution and that the release of the document would endanger life and safety—weren’t valid.

According to EPIC’s David Jacobs, who argued the case, the procedure doesn’t call for any specific investigation and it talks about “unidentified persons near speculative bombs,” so the release couldn’t specifically endanger the public.

SOP 303 was devised by DHS as a means to stop the theoretical detonation of a cell phone-triggered bomb. After the London suicide bombings of 2005, DHS temporarily shut down cell phone service in New York City, fearing a coordinated attack there, according to Jacobs.

“There was no procedure at the time, so they drew up SOP 303,” he said. "But it’s not just a free speech issue, but it’s also a public safety issue that must be subject to public oversight and debate."

The fact that we know anything at all about SOP 303, also known as Emergency Wireless Protocols, is due to its reference in one DHS report issued in 2009 that acknowledged its existence. According to that report, SOP 303 contains instructions allowing for the “termination of private wireless network connections, both within a localized area, such as a tunnel or bridge, and within an entire metropolitan area. The decision to shutdown service will be made by State Homeland Security Advisors, their designees, or representatives of the DHS Homeland Security Operations Center.” Homeland Security’s National Coordinating Center for Telecommunications would be the ones to carry out the logistics of any shutdown.

Government transparency groups like EPIC and the Center for Democracy and Technology have had their eyes on SOP 303 for about a year. Last May, Kevin Bankston of CDT wrote that the procedure is “flatly unconstitutional” due to it restricting free speech during times of an emergency.

“The government should not have the secret, unchecked authority to turn off the networks through which we all communicate every day,” he wrote. “Even in an emergency, wireless shutdowns are never the right choice.”

As far as we know, SOP 303 has not been used. There was some speculation that the procedure was used in the aftermath of the Boston Marathon bombings earlier this year, but using SOP 303, they easily could have. In 2011, officials at San Francisco’s BART transit system shut down cell service at four stations in anticipation of protests in downtown San Francisco. At the time, BART officials said they were acting with public safety in mind, but they later apologized for their actions and decided to draw up new guidelines. Homeland Security did not get involved.

Monday’s win in court is an important one, but that doesn’t mean SOP 303 is definitely going to see the light of day. Boasberg gave DHS 30 days to appeal the case or classify the document, a process they’d likely have little difficulty doing. Once classified, it’d be impossible to FOIA.

“If it’s properly classified, then we would likely challenge the classification, but it would be more difficult to release,” Jacobs said. “And I can’t imagine they’re eager to release it, given they just litigated the case.”