Disconnected During Terror

by Latoya Livingston on April 29, 2013

Boston Marathon Attack“I need to tell them that I’m okay!”  A phrase that was likely uttered numerous times in the midst of the recent chaos in Boston.  Thousands of people were glued to their screens mid-morning on April 15th in the wake of the news that the Boston Marathon had been bombed.  Then, even more troubling news hit in the form of an Associated Press report that cell phone service was intentionally disconnected.

Although the report was ultimately proven to be false, the idea that people would not be able to confirm their survival to worried loved ones creates an uneasiness with which most people could empathize.  However, considering the debacle that occurred in 2011 when San Francisco’s Bay Area Rapid Transit (BART) District used its controversial cell interruption policy to quell area demonstrations, the rumor following Boston’s terror attack did not seem so far-fetched.  In fact, a government’s ability to cut off cell phone service following social unrest or public danger is a hotly debated topic not only in the U.S., but on the world stage.

Foreshadowing?

Two weeks ago, I had the immense honor to serve as a senior judge at Oxford University’s Programme in Comparative Media Law and Policy’s Price Media Law Moot Court Programme in England.  Every year, the moot court program brings together scholars, attorneys, and law students from all corners of the globe to not only debate media law issues, but also to learn from those in the trenches of developing international media law and policy.

I bring up my time at the moot court because in a macabre instance of life imitating art, one of the major issues tackled by this year’s participants was a government’s right to shut off mobile phone service during a destructive riot.  While a team from an Indian law school beat out an American law school after arguing that such an action would violate various international laws and covenants, there were many poignant points made on both sides of the debate.  Namely, that the government should not infringe on freedom to access information, unless that right needed to be reasonably and briefly interrupted because on an active and present danger to citizenry.  It is clear that the teeter-totter that is the balance between ensuring public safety and order versus protecting the right to information and speech will continue to wobble, especially given the pervasiveness of the Internet and the ease of communicating telephonically.

WWOD: What Would Orwell Do?

Big Brother may (or may not) be watching, but is he censoring our contact with each other?

From San Francisco to Egypt to London, governments have often weighed the benefits of disconnecting their public from access to signals that would allow them to share information on social media and organize via texting during public disturbances and riots.  During those instances, the international community was exceptionally vocal in its disdain for what it viewed as a tyrannical imposition on free speech.

There has never been a clear cut standard for the appropriate signs of when censorship or restriction of people’s right to information is appropriate.  Public opinion has veered on the belief that censorship is inappropriate when a government uses its power to quell riotous activities, whether the disorder would be later viewed as a righteous uprising or as an antisocial tantrum of a few disaffected souls (a point that many of the moot courters in Oxford virulently argued).   However, the Boston attack was different.  If the police had turned off mobile service, it would have been to inhibit the bombers’ ability to communicate, organize, and possibly detonate more bombs.  In this situation, the reasonableness of service interruption would arguably be easier to understand.

Where do the carriers fall on this issue?

In Boston, as the rumors swirled, the major U.S. carriers immediately denied that the government asked them to shut down service.  In fact, many of the carriers stepped up to increase their subscribers’ ability to communicate.  For example, AT&T set up a mobile calling center and cell phone charging station at Boston’s Sheraton hotel and opened up its Wi-Fi network to callers of any network.

Normally, the carriers are allowed to shut off service to an area if a tower needs to be repaired, but the legality of shutting off service for other reasons depends heavily on the means of communication (voice, text, or data).  For example, when it comes to voice calls, governed under Title II of the Federal Communications Act of 1934, the Federal Communications Commission must grant approval before a carrier can disconnect service; however, when communication is classified as Title I information services, the carriers can have a much easier time inhibiting text and data access.

When one adds public safety or disturbances into the mix, the discussion becomes much murkier, something that the Commission recognized when it sought public comment on certain wireless interruptions in April 2012, likely in response to public outrage.  Shortly following San Francisco’s BART incident, Public Knowledge, joined by MMTC and other public interest organizations, submitted an Emergency Petition for Declaratory Ruling to the Commission expressing grave concerns for San Francisco’s methods to quell its public disturbance and the troubling precedent that it could set.

Where do we stand?

As the debate rages on and caveats are created, governments must vigilantly protect access to information and free speech.  While it is easy to justify almost any action under the blanket of protecting the public and keeping public order, the power of the Internet to foster communication at the stroke of a key must be equally considered.  As time goes by, there will undoubtedly be more instances where this see-saw will be debated, hypothetically and in real life.  Personally, I feel some sense of solace in believing that we, as consumers, have the right to voice our opinion and effectively influence government action on this issue.

  • Latoya LivingstonLatoya Livingston is a Washington-D.C.-based attorney with years of legal experience working in the private and public sector. Currently, Attorney Livingston serves as a Senior Attorney and the Earle K. Moore Fellow at MMTC.
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