United States: Is a communications blackout ever OK?

George Washington University’s Cyber Security Policy and Research Institute recently hosted an event to discuss the constitutionality and legality of cell phone and Internet blackouts. The issue came to a head in the United States this past August when San Francisco’s public transportation system, BART, shut down the system’s underground cell phone network for several hours to prevent protestors from executing plans to disrupt train service.

The event focused on a central question: Are cell phone and Internet blackouts by government agencies unconstitutional and illegal, absent a declared national emergency? In an amicable debate on the subject, Gregory Nojeim from the Center for Democracy and Technology argued in favor of the premise, while Paul Rosenzweig of Red Branch Law and Consulting argued against it. Both sides emphasized that while they agree on other issues, this is a topic that even reasonable minds can disagree about.

Challenges in applying old law to new technology were endemic. The BART station itself was clearly a public forum, but what about the airwaves and networks that formed the “virtual forum” above the platform? What legal precedents apply? How does one ensure that any regulations regarding future cell phone shutdowns will be content-neutral?

The Electronic Frontier Foundation characterised BART’s shutdown of cellular service as an overt assault on freedom of expression, comparing the situation to recent Internet shutdowns in Egypt:

“Cell phone service has not always been available in BART stations. The advent of reliable service inside of stations is relatively recent. But once BART made the service available, cutting it off in order to prevent the organization of a protest constitutes a prior restraint on the free speech rights of every person in the station, whether they’re a protester or a commuter. Freedom of expression is a fundamental human right. Censorship is not okay in Tahrir Square or Trafalgar Square, and it’s still not okay in Powell Street Station.”

Nojiem agreed with this position, holding up his PDA and declaring “It’s your soapbox and the government is trying to kick it out from under you.” He argued that the protestors posed no imminent safety risk, citing Brandenburg vs. Ohio: which stated:

“….constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

On the contrary, Rosenzweig argued that governments needed to be given wider discretion in controlling cell phone and Internet services. He maintained that preventing government access to shutting down these services is not a “slippery slope to China’s great fire wall” and implored participants to have some faith that the government would in the public’s best interest. BART, he suggested, should have clearly defined, content neutral policies that would allow them to effectively respond to urgent situations.

This argument is supported by the precedent set by Clark, Secretary of the Interior, et al. versus Community Creative Non-Violence:

“Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions. We have often noted that restrictions of this kind are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.”

This is an important discourse to continue. The BART shut down highlights that, even in a country with strong protections for freedom of expression, there is a struggle to develop a core understanding of how we measure free speech. Mayor Bloomberg recently struggled to develop consistent rhetoric in addressing Occupy Wall Street movement in New York.  “There is no easy answer,” Mr. Bloomberg told the press. “But there is a right answer, and the right answer is allow people to protest, but at the same time enforce public safety, provide public safety and quality-of-life issues, and we will continue to do that.”