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Will Secret-ish DHS Procedure to Cut Cell Phone Service be Revealed?

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By Casey C. Sullivan, Esq. on April 13, 2015 12:57 PM

The Department of Homeland Security could possibly have to reveal details of its secretive Standing Operating Procedure 303 program should the D.C. Circuit rehear a recent decision en banc. SOP 303 is the voluntary process for cutting off the nation's cellular phone system in times of emergency.

The program, adopted after cell phones were used in a 2005 London bombing, is highly controversial. Cutting off mobile communication is something more often associated with authoritarian regimes looking to maintain a tenuous grasp on power. The Egyptian government under Hosni Mubarak shut off cell service during the Arab Spring protests, for example. Iran, Mynamar, and China have all taken steps to stop mobile communication at some point.

So, will a rehearing mean that we'll find out what would cause the U.S. to do the same?

The Grand Ayatollah and BART

SOP 303 puts the U.S. with some strange company, though the policy is so closely guarded it's hard to know when it would be used and how. The Electronic Privacy Information Center sought to reveal that information through a Freedom of Information Act request.

EPIC first submitted a FOIA request for the full text of SOP 303 following the shutdown of cell phone service by the Bay Area Rapid Transit system (BART) in 2011. In an attempt to thwart planned civil disobedience after BART police shot and killed a passenger, the transit agency simply flipped the switch to underground cell service for three hours, leaving riders without phone service.

EPIC's original request for SOP 303 was unsuccessful -- the Department of Homeland Security claimed it could find no responsive documents. After an administrative appeal, the Department searched again, and found one responsive document, SOP 303 itself. However, when it was released to EPIC almost all of the document was redacted.

A Massive New Exemption or a Reasonable Protection?

The D.C. Circuit ruled that "much if not all" of SOP 303 fell under FOIA Exemption 7(F). This exemption protects law enforcement records from disclosure which "could reasonably be expected to endanger the life or physical safety of any individual." Law enforcement need not specify who would be endangered.

EPIC had argued that allowing DHS to invoke Exemption 7(F) creates an "untethered 'national security' exemption" to the federal disclosure law. Allowing the agency to "merely assert a speculative security risk," with no determination as to who would actually be put at risk, would allow government agencies to withhold information on flimsy grounds. EPIC petitioned for a rehearing en banc and the Circuit ordered the government to respond, indicating that a rehearing may be granted.

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