[Susan Crawford] Phone, Web clampdowns in crises intolerable

Can U.S. citizens count on using the Internet and cell-phone networks to communicate in high-stress situations? The Federal Communications Commission is about to examine that question. Public interest and the law both require that channels stay open.

At issue is the termination of cell-phone service by San Francisco’s Bay Area Rapid Transit system on Aug. 11. It acted to thwart a protest about a shooting of a passenger by BART police. A host of consumer advocates and digital civil-rights groups have filed an emergency petition, asking the FCC to step in.

As far as anyone knows, no government agency in the U.S. had cut off general-purpose communications before BART took this step. The question before the FCC is whether BART’s action violated the Telecommunications Act of 1996, which prohibits discontinuing or impairing service without due process.

It is essential that the FCC quickly find BART’s conduct wrong. Otherwise, Americans will be in the same situation as Egyptians were when former President Hosni Mubarak ordered the squelching of cell-phone service in Tahrir Square.

As the advocates’ petition makes clear, U.S. courts have consistently ruled against shutting communications services, on the grounds that no official has the authority to squelch phone service based only on the suspicion of illegal activity.

When Earl Warren was California’s attorney general in 1942, he wanted the phone company to cut off service to a man suspected of involvement with illegal gambling. A California court ruled that disconnection was unjustified, saying that a telephone company had no right to refuse access to its facilities because of a mere belief that the wires would be used for illegal purposes.

The same logic prompted a 1955 Alabama court to rule that Birmingham’s public safety commissioner, Eugene “Bull” Connor, couldn’t order the phone company to halt service based on mere suspicion. “The unconstitutional and extra-judicial enlargement of coercive governmental power is a frightening and cancerous growth on our body politic,” the court said.

BART had even less cause for its action than Earl Warren or Bull Connor. It assumed that people might use cell-phone service in a way that could cause discomfort to other passengers. A spokesman for BART, Linton Johnson, even suggested that a constitutional right to safety justified its decision and trumped any right to speak across public networks.

The Electronic Frontier Foundation has pointed out that 10 years ago, when BART enabled cell-phone access, the airplane hijackings and terrorist acts of Sept. 11, 2001, had shown that travelers would be safer if they could communicate. Passengers aboard United Airlines Flight 93, from Newark to San Francisco, found out via telephone calls that the World Trade Center and the Pentagon had been attacked and then voted to rush the hijackers. Workers at the World Trade Center were able to use phones to let their families know they had survived.

The deep connection between San Francisco and the doomed flight made BART’s decision to wire its tunnels a popular one. BART, by blocking all cell-phone service last month, forgot its own rationale.

BART’s overreaction to the risk of a protest against police brutality triggered a fierce, rapid response from First Amendment scholars, communications experts and the media. Meanwhile, protesters mounted even more protests.

The FCC’s decision to investigate was accompanied by a cautious statement from spokesman Neil Grace. He said the commission was gathering information “about the important issues (BART’s) actions raised, including protecting public safety and ensuring the availability of communications networks.”

If the FCC slow-rolls this one, or accepts BART’s decision and sides with those who believe that phone service is a convenience that can be banned for any reason, other local officials will undoubtedly adopt BART’s tactics. Such a response would undercut the American tradition of open communications across public, general-purpose networks.

This petition is about more than avoiding bothersome texting; it deals with the future of the digital age in America. Government officials around the world have found it very easy to cut off communications when times are tense.

Mubarak’s sudden decision to block Internet and cell-phone service in January is the best-known example. Libya throttled Internet access “to the point of uselessness” a couple of months later. Syria cut off access in June.

When riots erupted in the U.K. last month, Prime Minister David Cameron considered banning people from using Facebook and Twitter. He told Parliament he was looking at “whether it would be right to stop people communicating via these websites and services when we know they are plotting violence, disorder and criminality.” He backed down following a public uproar.

It is tempting to avoid disruptions by using the totalitarian tactic of silencing speech. When basic Internet connectivity is controlled by so few hands, as is true around the world, such decisions can be executed with extraordinary ease. Mubarak probably needed to make just seven phone calls to cut his country off from the Internet.

The FCC’s examination of the BART fiasco is a positive step. Now the commission needs to act quickly and decisively, making clear that local law-enforcement officials lack the authority to suspend basic communications services.

As the United Nations said in June, the Internet is “an indispensable tool for realizing a range of human rights, combating inequality, and accelerating development and human progress.” The consequences of getting this one wrong are unbearable. 

By Susan Crawford

Susan Crawford is a Bloomberg View columnist and a professor of law at Cardozo School of Law. The opinions expressed are her own. ― Ed.

(Bloomberg)