An FCC inquiry follows a transit authority’s deliberate disabling of passengers’ wireless phones.

The FCC has always been interested in preventing interruptions to telephone service. Usually it focuses on failures due to natural disasters, and plain old equipment breakdowns. But now it has a new concern: deliberate service stoppages implemented at the request of a state or local government. Yes, it sounds like something out of protests in the Middle East. But it happened at least once in the United States, and now the FCC is looking for policy guidance, hopefully before it happens again.

Last August, the folks who run the Bay Area Rapid Transit (BART) system in San Francisco/Oakland had word that protesters, objecting to BART police having shot and killed a man wielding a knife, planned to disrupt train service. (See a contemporaneous news account.) The protesters intended to use mobile devices, according to BART officials, to coordinate their activities and share information on the deployment of BART police. Fearing platform overcrowding and other unsafe conditions, and hoping to disrupt the disruptions, the BART people pulled the plug on underground cell phone service. (Protesters nonetheless managed to briefly shut down three stations.)

The BART system is something of a special case, in that BART itself owns the underground wireless network in its tunnels. Its actions consisted merely of turning off its own equipment.

Or maybe the matter is not that simple.

In providing the last link for underground cell phone service, BART arguably took on some attributes of a common carrier. Certainly a cell-phone-using passenger neither knows nor cares that his signal is passing over BART-owned facilities, in addition to AT&T’s or Verizon’s. Did BART’s ownership of the hardware give it the unquestioned right to disrupt passengers’ communications? Or consider the more likely case of a threat to public order via cell phone coming above ground. Could the San Francisco police, say, require AT&T and Verizon to shut down cell towers over a prescribed area?

From a legal standpoint, these are uncharted waters. But the BART incident has put the FCC on notice that local officials may sometimes seek to interrupt wireless phone service as a means to promoting public safety. Besides the possibility of a BART-type flash mob, police hypothetically might become aware of plans to use a cell phone to detonate an explosive device. At what point does the local government’s interest in maintaining public safety outweigh the public’s interest in having uninterrupted cell service?

The FCC’s dilemma, in addressing these questions, combines a very old controversy with a very new one.

The old controversy pits individual freedoms against the constraints demanded by a civilized society. So far as speech is concerned, the authors of the First Amendment to the U.S. Constitution made their views very plain: “Congress shall make no law . . . abridging the freedom of speech . . . .” It is hard to say this more clearly. Yet Congress has made, and the Supreme Court has upheld, many laws that do in fact abridge individuals’ freedom of speech – in each case, to uphold other interests valued by society. The founders also recognized, and sought to protect, the technological aids to speech of their time. The First Amendment mandates a free press, and the Fourth Amendment specifically mentions “papers” as entitled to protection from unreasonable searches and seizures. Yet, as recently as the Patriot Act, Congress and the courts have, under the banner of public safety, approved intrusions into speech-carrying technologies.

The newer controversy looks to the stunning spread of wireless phones. In less than a generation, they have evolved from bulky curiosities to palm-sized ubiquities essential to our lives. There are now more wireless phone connections in the United States than there are people. Have they become so necessary to our daily communications that protecting the First Amendment right to free speech requires protecting cell phone service?

Also affecting the balance of interests is the data point that 70% of 911 calls come from wireless phones. Shutting off wireless service, in response to an anticipated public safety threat, yields a different public safety problem: some ascertainable probability that a life-or-death 911 call will not get through.

The FCC has now waded hip-deep into this morass. It starts with no hint of its own views, but rather with a long list of questions, organized into 36 groups under six major headings. These are examples of the types of information in which the Commission is interested:

  • whether other BART-type incidents have occurred in the past; examples of wireless phones being used to put public safety at risk; whether public safety agencies have policies or mechanisms for interrupting wireless service;
  • situations in which a government authority might seek to interrupt wireless service; how often these situations occur and how long they last; whether the service interruption in fact would alleviate the threat;
  • the downside risks of interrupting wireless service;
  • whether providers can interrupt ordinary cell service while still preserving the functionality of 911 calls, priority cell use by first responders, and/or public notification of emergencies;
  • which agencies or officials (if any) should have the authority to order a service interruption; what procedures could ensure that such any orders are genuine; what after-the-fact reviews are appropriate;
  • what laws and regulations, including First Amendment, due process, and common carrier considerations, would prohibit or constrain a government’s ability to order an interruption, and a carrier’s ability to lawfully comply.

Read all the questions here. And tell the FCC what you think. It will need all the help it can get. Comments are due by April 30, 2012 and reply comments by May 30.