Denial of Service: Is Wireless Access Always a Right?

John Villasenor

As has been widely reported, on the afternoon of Thursday, August 11, Bay Area Rapid Transit (BART) authorities shut off mobile phone service in stations in downtown San Francisco in an attempt to impede a rumored protest.[i] The move, which BART characterized as a tactic “to ensure the safety of everyone on the platform” in a press release the following day,[ii] has been roundly condemned by a growing chorus of people who quite rightly see echoes of recent actions taken by Syria, Egypt, and Iran to stifle free expression through government-ordered shutdowns of digital media in those countries. As Rebecca Farmer of the ACLU of Northern California commented in a blog post, “Shutting down access to mobile phones is the wrong response to political protests, whether it’s halfway around the world or right here at home.”[iii]

While BART’s action handed repressive governments across the globe a card that will no doubt be played in the future, given that the protest never materialized, it accomplished little more. Or did it? If there is any benefit to be extracted from this event, it lies in stimulating important discussions and decisions regarding the degree and manner to which entities in control of wireless networks serving public spaces have a right to disrupt the movement of digital information.

It is broadly understood that wireless service may be absent altogether in a given public space, that it may be present but unavailable due to factors such as maintenance or insufficient capacity during periods of high demand, and that its utilization may be subject to various terms of use restrictions. Intentional shutdowns to thwart free expression, however, are a different matter, and the criticisms that have been directed at BART are generally reasoned and accurate. But it is also important to recognize that those criticisms are made from the safety of hindsight. We know now that there was no protest, that there was no rogue breakaway flash mob inside a station that exploited an otherwise peaceful event by using wireless messaging to single out the passengers of a specific subway car for a spree of robbery and assault. In a week that has also seen widespread rioting in the United Kingdom, some of it facilitated through wireless communications,[iv] and the imposition of a curfew in Philadelphia specifically in response to a spate of violent flash mob attacks,[v] the question of when a wireless network owner has a right to impede its use in the alleged interest of the greater public good – or when a government can compel a network owner to take such a step – is more relevant than ever.

At the extremes, the decisions are easy. If, for example, a transit authority were to receive credible evidence that terrorists had planted a cell phone-triggered explosive device in one of its underground stations, no reasonable person would argue against an immediate shutoff of cell phone service until the device could be located and safely disarmed. At the other end of the spectrum, almost everyone would agree that pulling the plug on wireless services in an attempt to obstruct the organizers of a peaceful protest is behavior more fitting of a repressive nation than of the United States.

The more complex questions lie in between. What is the proper level of control of communications systems in an era when wireless networks and services are increasingly being exploited by very small numbers of people to facilitate genuine physical harm but can also be used at precisely the same times and places for innocuous or beneficial purposes by much larger numbers of people?

An argument can be made that electronic messages broadcast to members of a flash mob for the specific purpose of promoting mayhem are textbook examples of “fighting words” – words that in the language of the landmark but now much eroded[vi] 1942 Supreme Court Chaplinsky v. New Hampshire decision “by their very utterance, inflict injury or tend to incite an immediate breach of the peace”[vii] – and thus do not qualify as protected free speech. But authorities endeavoring to silence what they believe to be unprotected digital utterances by silencing all persons using their networks are performing surgery with a very blunt knife. Further, impeding the ability of protesters to communicate on the belief that they might have chosen to engage in unprotected speech if left unimpeded is imposing real punishment for speculative behavior. Finally, people who had planned on using a wireless network to facilitate violent acts but find that it has been shut down can simply adapt their crimes, focusing instead on victims who they now know will be unable to use the network to call for help.

Monitoring and analyzing the private traffic content on wireless networks would potentially offer a means to limit communications cutoffs to only those persons making illegal use of those systems. But by definition, such monitoring would collide directly with privacy rights. A solution that would purport to ensure the right to freedom of expression at the price of trampling the right to privacy is not a solution at all. Thus, in practice, properly maintaining privacy and freedom of expression on wireless networks indeed involves some cost, on rare occasions, to public order. But this is far better than the alternative; after all, in a repressive society, maintenance of public order comes at the cost, at all times, of freedom of expression.

With the continued growth in wireless infrastructure, the power to confer or deny our ability to communicate using mobile devices can now be held by employees of venues with publicly accessible wireless networks including shopping centers, hotels, airports, universities, coffee shops, and yes, transit systems. Companies should put in place clear internal policies that minimize the chances that these employees will impose network shutdowns in the name of public welfare that not only stifle free expression but also introduce new safety risks. Today such policies are often lacking, and employees can be faced with the unenviable challenge of needing to make nearly immediate decisions regarding how to respond to the potential use of their systems to organize flash mob violence, to download and display offensive content, or to engage in any number of other behaviors that raise genuinely difficult questions regarding the limits of free speech.

In some instances they will make wrong or even egregiously wrong decisions. In some instances they will be subject to withering criticism regardless of the decisions they make. In rare cases their decisions will be borne out of a malicious and wanton disregard for the importance of privacy and freedom of expression. But much more often, if mistakes are made it is because they, like the rest of us, are still learning how to best ensure these basic rights amid a quickly evolving and increasingly complex information technology landscape.

[i] Cabanatuan, Michael. “BART admits halting cell service to stop protests.” August 13, 2011. San Francisco Chronicle. http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/08/13/MNEU1KMS8U.DTL, retrieved August 13, 2011.
[ii] Bay Area Rapid Transit. “Statement on temporary wireless service interruption in select BART stations on Aug. 11.” Updated August 12, 2011, 1:08 PM. http://www.bart.gov/news/articles/2011/news20110812.aspx, retrieved August 13, 2011.
[iii] Farmer, Rebeca, “Cell Phone Censorship in San Francisco?” ACLU. http://www.aclu.org/blog/author/Rebecca-Farmer,-ACLU-of-Northern-California, retrieved August 13, 2011.
[iv] CBS News. “On 3rd day, U.K. riots spread to 4th city.” http://www.cbsnews.com/stories/2011/08/08/501364/main20089696.shtml, retrieved August 13, 2011.
[v] Masterson, Teresa. “City Curfew for Minors Begins.” NBC Philadelphia. August 13, 2011. http://www.nbcphiladelphia.com/news/local/127609088.html, retrieved August 13, 2011.
[vi] While the scope of “fighting words” has been significantly narrowed in the years since 1942, Chaplinsky continues to have judicial relevance. It was cited, for example, by Supreme Court Justice Samuel Alito in a 2011 dissenting opinion in the Snyder v. Phelps (09-751) case, which considered the right of members of Westboro Baptist Church to protest at soldiers’ funerals. See http://supreme.justia.com/us/562/09-751/dissent.html, retrieved August 14, 2011.
[vii] Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942). http://supreme.justia.com/us/315/568/case.html, retrieved August 13, 2011.