DHS Internet Kill Switch: No Checks & Balances or Court Oversight and FOIA Requests Denied

A kill switch refers to the government’s authority to disconnect wireless networks — both private and commercial. It involves both cell phones and the Internet and takes place in the event of an emergency.

Many questions surround the government’s use of the kill switch, but last week a federal appeals court ruled the US does not have to disclose its secret strategy, Standard Operating Procedure (SOP) 303, for using the kill switch. The government argued it needs to keep the procedures private in order to protect national security.

The decision was passed down by the US Court of Appeals for the District of Columbia Circuit. This is the same stance the court took back in February when it agreed with the US government’s claim that the Freedom of Information Act (FOIA) allows the Department of Homeland Security (DHS) to withhold documents if disclosure could “endanger” public safety.

Following the recent ruling, the Electronic Privacy Information Center (EPIC), which brought the FOIA suit, asked the court to revisit the issue, a process known as en banc review. The appeals court, however, denied the request last Wednesday.

EPIC initially sought the documents in 2011, following the disconnection of cell phone service in the San Francisco Bay Area subway system. It was imposed in order to thwart a protest. The DHS refused to divulge the documents associated with SOP 303, so EPIC sued and won the case in the lower courts, but the DHS appealed.

Critics of the government’s power to disrupt wireless service argue that activating any kind of kill switch will do more harm than good. Harold Feld, vice president at Public Knowledge, an advocacy group which monitors communications and technology policy, has said: “I find it hard to imagine why an internet kill switch would ever be a good idea, short of some science fiction scenario wherein the network comes alive a la Terminator/Skynet. At this point, so much of our critical infrastructure runs on the internet that a ‘kill switch’ would do more harm than anything short of a nuclear strike. it would be like cutting off our own head to escape someone pulling our hair.”

The same argument can be applied to shutting down cell phone service. Says Eva Galperin of the Electronic Frontier Foundation: “The benefit of people being able to communicate on their cellphones in times of crisis is enormous, and cutting that off is in and of itself potentially very dangerous.”

The following is a list of concerns that have been voiced in regard to the DHS kill switch:

  • “Civil liberties advocates argue that kill switches violate the First Amendment and pose a problem because they aren’t subject to rigorous judicial and congressional oversight. ‘There is no court in the loop at all, at any stage in the SOP 303 process,’ according to the Center for Democracy and Technology.”
  • With no checks and balances of court oversight, clear instruction from Congress, or transparency to the public, the DHS has essentially been given unchecked authority.
  • “Such a policy, unbounded by clear rules and oversight, just invites abuse,” David Jacobs has said.
  • There’s too much we don’t know about the kill switch plan.
  • We don’t know the “series of questions” that help the DHS decide whether it should activate the kill switch.
  • It is not known how the DHS will go about implementation of the kill switch.
  • It is unknown how long a shutdown will last.
  • What, if any, oversight protocols exist within the DHS for self-monitoring?
  • EPIC argues that the decision, “if left in place, would create an untethered ‘national security’ exemption” in FOIA law.
  • Where does a government draw the line with defensive measures? (Civil liberties should not be infringed)
  • Sophos’ Chester Wisniewski has pointed out that in the event of an attack over the internet, an attack that disrupts essential systems, turning off the whole thing wouldn’t disrupt the problem. It would just keep us all from accessing those same essential systems.
  • It could give the government the leeway to shut down cell service even in situations having nothing to do with terrorism.
  • Fox News’s Harris Faulkner made the point that the policy was rolled out without any debate, discussion or public notice.
  • Harris also explained that people need to be on the same page in a time of crisis and disabled cell service significantly hinders that.

This is how David Jacobs, EPIC’s consumer protection counsel, sees things:

“Even well-meaning communications shutdowns can have serious, unintended consequences for public safety. In crises, the networks used to send messages the government wants to stop are the same networks used to call 911, text family members, or receive emergency alerts. Not surprisingly, most public interest groups object to policies like SOP 303 that give the government unchecked power to cut off our communications.

How do we know that DHS is following the First Amendment or considering these important interests adequately? We don’t.”

It is possible the DHS will be forced to release portions of the covert document, as the case is now headed back to the district court.