Rights-violation issues

In contrast, FCC guidance and court oversight is needed, insisted Kevin Bankston, senior counsel and director of the Freedom and Expression Project at the Center for Democracy and Technology. The center is a nonprofit policy-based organization based in Washington, D.C., that promotes Internet freedom worldwide. The organization submitted comments to the FCC's public notice through a consortium of First Amendment advocacy groups.

A shutdown of wireless service — regardless of whether it is done by government or private parties — threatens public safety and the public's First Amendment rights, Bankston said. The maintenance of wireless service during an emergency is critical to the public's ability to receive and transmit information about an incident, he said.

In addition, the blocking of communications by a government entity is illegal, as speech is protected against prior restraint by the First Amendment, Bankston said. Prior restraint is defined as an official government restriction of speech prior to publication and is viewed by the U.S. Supreme Court as "the most serious and the least tolerable infringement on First Amendment rights," according to the court's 1976 opinion in Nebraska Press Association v. Stuart.

The consortium argued that even the narrowest prior restraint on speech only can be justified by demonstrating to a court that such speech would result in direct, immediate and irreparable harm to the nation or its people.

"As demonstrated by countless shutdowns by foreign governments, such blanket restrictions on speech pose a grave threat to legitimate expressive activity," their statement read.

Just the act of shutting down a communications network can be dangerous, said Sherwin Siy, one of the drafters of the comments and deputy legal director for Public Knowledge, which also advocates for an open Internet. Looking at the BART incident, Siy said that while rail officials were concerned about public safety, anybody who might be injured or hurt during the shutdown were unable to contact emergency services.

"If someone is hurt at a station, they aren't going to be able to easily access a payphone — especially if there are crowds," he said. "It might not be easy to get a police officer either."

Even if calls to 911 are unblocked, shutting down a rail system's communications network prevents others from contacting loved ones, informing the media or learning details about the incident. Such a scenario would flood the 911 system with calls.

"Does the harm outweigh the good? That's something that needs to be weighed," Siy said. "But there are a number of practical reasons not to do this."

They include the infringement of civil rights, a slippery slope. Siy said that because BART prevented people from communicating, the action falls under prior restraint of speech — meaning that it is unconstitutional.

Even more distressing is the potential for abuse. BART set a precedent for private networks to control protesters' actions based on assumptions, deciding the night before the event to shut off communications.

"So, you can see justifications to flip that switch from immediate threat to life and safety all the way to something they don't want to happen," Siy said. "The more power you give to do that, the more likely that it will be used and the more it will happen in situations that are not warranted at all."

Is this a trend? Siy said it depends on whether the FCC releases some guidelines and recommendations to state and local governments that "you can't do this on a whim" because constitutional issues need to be taken into account.

"We'd like to see some sort of a uniform standard that protects people's rights," he said.

This is an important point, Bankston said. Communications should be safeguarded from censorship at all costs. Furthermore, the Federal Communications Act, in addition to forbidding network interruptions by government as a means of censoring particular communications, generally prohibits carriers or other private parties from interrupting or interfering with wireless service, he said.

The CDT also wants the FCC to issue clear rules limiting federal, state and local governments from interrupting wireless service as a matter of policy in an emergency. This also would apply to the carriers themselves or any private entity.

Government shut downs of a communications network based on the mere supposition of a possible danger is against the tenements of democracy, Bankston said. Moreover, a communication blackout would add chaos to an already chaotic situation, he added.

Indeed, BART crossed the line when it shut down its network for the explicit purpose of disrupting the protest activity based on its fears of what might happen, Bankston said. He added that the risk to free expression is so great that government entities shouldn't be allowed to engage in such shutdowns.

"Frankly, any large demonstration will carry some risk of danger to public safety, be it through injury or through harm to property," he said. "And if authorities were able to use that pretext as a reason to shut down communications during practically any protest, that would make our First Amendment guarantee right of petitioning the government through protests an empty letter."

According to Bankston, no shutdown should occur without a court in the loop in order to guarantee the citizenry's rights, nor should network shutdowns be kept secret. Bankston said the entity must notify the public when such a shutdown has occurred, so that citizens can go to court to determine whether and to what extent their rights were violated.

"That's one of the most worrisome issues here, which is the prospect of the government engaging in secret network shutdowns to such extent the public never knows and can't hold the government accountable — or ensure the courts are able to rule on when network shutdowns are acceptable," he said.

The Supreme Court in many ways already has addressed the question in SOP 303. The protocol states that the government carries the burden to demonstrate why prior restraint is justified. Bankston believe that such action only would be appropriate in the most egregious circumstances, when disaster would result if service was not interrupted.

"That is a very high burden, and it should be a court's [decision] whether that burden has been met," Bankston said. "A government [entity] should never be able to unilaterally shut down communications of thousands, if not millions, of people without a magistrate in the process to ensure those people's First Amendment rights are protected."