Supreme Court May Review U.S. Government’s Cellphone ‘Kill Switch’

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On August 11, the Electronic Privacy Information Center (EPIC) filed a petition with the  U.S. Supreme Court in their latest effort to force the U.S. government to reveal information about a cellphone shutdown policy, also known as a “kill switch”.

EPIC has fought for records related to the program since July 2011, when it was revealed that Bay Area Rapid Transit (BART) officials in San Franscico shut down cellular networks during a protest of a murdered homeless man. BART denies blocking cell networks. In July 2012, EPIC submitted a FOIA request to the Department of Homeland Security to find out more about the procedures governing such actions.

The DHS initially claimed that they were “unable to locate or identify any responsive records.” However, on November 12, 2013, a District Court ruled that the DHS improperly withheld information, specifically information regarding something known as Standard Operating Procedure 303 or SOP 303. The DHS appealed this decision and was once again allowed to withhold records. Now EPIC is taking the fight to the Supreme Court.

In their petition to the Supreme Court, EPIC argues that, “[a]bsent Supreme Court review, the decision of the court of appeals could transform the FOIA from a disclosure to a withholding statute.”

Little is known about these programs, but EPIC writes that “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.

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.”

EPIC has asked the court for three specific pieces of information regarding the kill switch program. They want to see the full text of SOP 303; the full text of the pre-determined “series of questions” that determines if a shutdown is necessary; and any executing protocols related to the implementation of SOP 303, distributed to DHS, other federal agencies, or private companies, including protocols related to oversight of shutdown determinations.

SOP 303 is invaluable in helping the public understanding the true nature and depth of this program. Without understanding how basic procedure around the kill switch works the public is operating in the dark, never knowing when the government might decide conditions permit a shutdown of cellular networks. EPIC also argues that Freedom of Information Act requests, specifically Exemption 7(F) which allows for withholding documents if they are expected to endanger the safety of any individual, are being abused.

What will be the outcome? Will the U.S. Supreme Court take the case and finally give the American public a glimpse into yet another program operated by the State? Or will Americans continue to operate in ignorance? Leave your comments below.

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