Post Government-Ordered Wireless Shutdowns: Possibly Unconstitutional, Likely Illegal, Never a Great Idea

As Kara noted last week, the FCC is asking you to comment on when it’s appropriate for government agencies to cut off cellular services in the interests of public safety. For a variety of reasons, my initial answer to that is “rarely, if ever.” Aside from definite knowledge of a cell phone-triggered bomb, or a freak occurrence where the 800-900MHz range somehow interfered with a pacemaker, it just doesn’t seem like a particularly good idea. There’s a host of reasons why, and a lot of them were argued in the wake of BART’s October shutdown of cell service in anticipation of a protest. But this isn’t about BART; it’s about preventing future unnecessary shutdowns.

A number of the arguments focused on the First Amendment question—a government entity cutting off communications is certainly interfering with speech, all the more so if it’s intended to interfere with a public expression of political dissent. Add in a number of relevant constitutional questions (is public transportation a public forum? what about the airwaves?), and you have enough complicated outrage and shoutiness to keep Con Law professors in exam questions for years.

PK and a coalition of other public interest groups took a different tack, telling the FCC that government communications shutdowns violate the Communications Act. pointing out that the shutdown, whether or not it was constitutional, broke federal laws.

Now that the FCC has started the important policy debate, it’s time to move past the specifics of the BART shut down and answer this larger question. What I want to focus on in this post is not necessarily the legalities of a shutdown, but the practicalities. Whether it’s legal (or not) or constitutional (or not), there’s several very good reasons that a government shouldn’t be in the business of shutting down communications, particularly in emergency or crisis situations.

For one thing, it’s precisely in emergency situations that ordinary users most need cellular communication. Not just for their own good, but for the good of all around them. Being able to call 911 is absolutely critical, and the fact that nearly everyone in public has a working phone only increases the speed with which emergencies get called in to 911. That’s fairly rudimentary, and it doesn’t really pass the smell test for an agency to claim that the existence of pay phones (I count all of two in my local Metro stop, both isolated in one part of the station) or of additional police (“Hey! Officer! You in the riot gear! My arm hurts and it might be angina!”) can make up for this.

Shutting down communications also deprives journalists—professional or not—of the critical ability to report what’s happening in a crisis. Aside from the long-term social good of free speech and recording events for posterity, communications about a crisis to the general public can be lifesavers, getting the word out about dangerous conditions before government channels may. Even simple point-to-point communications with loved ones can become important in a coldly utilitarian sense, as those loved ones can get critical information to news outlets faster than those on the scene can.

Humanity’s natural ability to communicate around barriers is one major reason why it’s also a mistake for governments to try and anticipate what numbers or what protocols should or shouldn’t be privileged in an emergency. One of the questions in the Public Notice asks if providers have the ability to allow only 911 calls, or only allow government-originated emergency messages through. Even if we add to the list of troubling things we’re ignoring the Orwellian picture of turning everyone’s personal communications devices into conduits that lead only to and from the government, doings something like this would prohibit all of the beneficial non-governmental communication that can happen in a crisis. Nor is it any better for an agency, after the fact, to decide what protocols are more important than others. It might seem as though telephony might be a more critical communications link than the Web, but how much information about disasters has been first reported (and usefully tracked) via Twitter or some other over-the-top service?

Finally, the FCC asks about what sort of process should be in place for a government entity to shut down communications, and under what authority. This highlights the sensitive nature of this whole proceeding. FOIA docs show that the BART shutdown request initially came from BART police directly to the companies that operated the systems, and they simply shut down. What this means is that in practice, anyone who can lean on the services to do this has the power to suppress communications. Are we comfortable giving this ultimate say-so to any particular person, be they a governor, a city council member, or a police official? Even with some sort of process in place, what’s preventing someone not part of that process from leaning on the guys who can pull the plug, unless there’s real consequences for someone doing an end-run around the proper procedures, whatever they may be? The ability to cut these communications for emergency purposes is also the power to chill and stifle speech, and even as a purely pragmatic matter, that’s not a power that should ever be used lightly or often.