A federal court this week has ordered the Department of Homeland of Security to disclose details about the so-called "internet Kill Switch," that would allow the agency to "deactivate wireless communications networks" if it determined a localized or national crisis demanded such an action.
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 cit ed reasons for keeping the details of the program secret did not hold up.
The court said the goverment could appeal the case or be forced to hand over the details requested within 30 days.
As The Verge reports:
Once the document is released, advocates will know exactly when and how the kill switch can be activated, and will be better equipped to mount an appeal if they feel the switch has been activated without sufficient cause. EPIC had previously filed for the document under a Freedom of Information Act request, but received a document so heavily redacted as to be unreadable. Thanks to the DC District Court, they'll now have the full text.
But will they?
Welcomed as win by EPIC the case is almost certainly to be appealed by the government. As the judge himself indicated, the court's ruling, "is no judgment on whether it is in the national interest for SOP 303 to be disclosed. If, in fact,the government believes release will cause significant harm, it has other options to pursue.”
That language is a strong indication that DHS will come back to claim that it can continue to guard the details of the "kill switch" by claiming that the program is of "vital national interest," an argument that courts in the post-9/11 era have been extremely hesitant to rule against.
As the following background on EPIC's lawsuit suggests, however, the whole government rationale for creating and maintaining the ability to "kill" communication networks appears specious. It was on the basis of what happened in the city of Oakland in 2011 that has helped fuel EPIC's continued concern over the use of such tactics. From EPIC's webpage:
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.