Standard Operating Procedure 303 codifies “a shutdown and restoration process for use by commercial and private wireless networks during national crises.”
On March 9, 2006, the National Communications System (“NCS”) approved SOP 303, however it was never released to the public. This secret document codifies a “shutdown and restoration process for use by commercial and private wireless networks during national crisis.” In a 2006-2007 Report, the President’s National Security Telecommunications Advisory Committee (“NSTAC”) indicated that SOP 303 would be implemented under the coordination of the National Coordinating Center (“NCC”) of the NSTAC, while the decision to shut down service would be made by state Homeland Security Advisors or individuals at DHS. The report indicates that NCC will determine if a shutdown is necessary based on a “series of questions.”
On July 3, 2011, a Bay Area Rapid Transit (“BART”) officer in San Francisco shot and killed a homeless man, Charles Hill. The officer alleged later that Hill had attacked him with a knife and that he had acted in self-defense. The death sparked a major protest against BART on July 11, 2011. Though the protests disrupted service at several transit stations, no one was injured. A second protest was planned one month later, but was cut short after BART officials cut off all cellular service inside four transit stations for a period of three hours. This act prevented any individual on the station platform from sending or receiving phone calls, messages, or other data.
The incident with BART has set off a renewed interest in the government’s power to shut down access to the Internet and other communications services. A 2011 Report from the White House asserted that the National Security Council and the Office of Science and Technology Policy have the legal authority to control private communications systems in the United States during times of war or other national emergencies. The Federal Communications Commission plans to implement policies governing the shutdown of communications traffic for the “purpose of ensuring public safety”. Also, on July 6, 2012, the White House approved an Executive Order seeking to ensure the continuity of government communications during a national crisis. As part of the Executive Order, DHS was granted the authority to seize private facilities, when necessary, effectively shutting down or limiting civilian communications.
EPIC’s Freedom of Information Act Request and Subsequent Lawsuit
In July 2012, EPIC submitted a FOIA request to DHS for:
The full text of Standard Operating Procedure 303;
The full text of the pre-determined “series of questions” that determines if a shutdown is necessary;
Any executing protocols related to the implementation of Standard Operating Procedure 303, distributed to DHS, other federal agencies, or private companies, including protocols related to oversight of shutdown determinations.
On July 24, 2012, DHS acknowledged receipt of EPIC’s FOIA Request. On August 21, 2012, DHS provided its final response, claiming that the agency was “unable to locate or identify any responsive records.”
On February 27, 2013, EPIC filed EPIC filed a lawsuit under the FOIA in the District Court for the District of Columbia. After filing the complaint, EPIC received a letter from the United States Coast Guard Office of the Chief Administrative Law Judge. Administrative Decision Letter. The letter indicated that “the record fails to demonstrate that the Privacy Office conducted an adequate search for responsive records” and stated that the filed would be remanded for further review.
U.S. District Court for the District of Columbia
On November 12, 2013, the District Court ruled that the DHS improperly withheld SOP 303 and granted EPIC’s motion for summary judgment. In a motion for summary judgment, the government claimed it properly withheld SOP 303 under Exemptions 7(E) and 7(F). The court rejected both claims.
In order to withhold a record under Exemption 7, an agency must first satisfy the (b)(7) threshold: the record was “compiled for law enforcement purposes.” Next, the agency must satisfy the requirements of one of Exemption 7’s subsections. The district court found that the agency met the (b)(7) threshold because “law enforcement” includes crime prevention measures discussed in SOP 303. However, the court rejected the agency’s argument that SOP 303 fell under 7(E). Exemption 7(E) permits agencies to withhold records compiled for law enforcement purposes that “would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” The court rejected the government’s 7(E) claim because if “[7(E)] is given its natural meaning, it cannot encompass the protective measures discussed in SOP 303.”
The court also rejected the government’s claim under 7(F). Exemption 7(F) permits an agency to withhold records compiled for law enforcement purposes if production “could reasonably be expected to endanger the life or physical safety of any individual.” The issue in this case was the scope of the term “any individual.” The government claimed that the “any individual” test was satisfied because those endangered are any individuals near a bomb. The court rejected the government’s argument stating that “the agency still must identify the individuals at risk with some degree of specificity.”
The district court ordered DHS to produce SOP 303 to EPIC within 30 days, but stayed the order for 30 days to allow the agency to file an appeal, or to exempt the record through classification or legislation. DHS appealed the case but did not attempt to withhold the record under another FOIA exemption.
U.S. Court of Appeals for the D.C. Circuit
In June of 2014, DHS filed an appeal challenging the lower court’s decision as to Exemption 7(E) and 7(F). EPIC filed a brief in response arguing that the district court’s decision was correct. EPIC identified the issue on appeal as:
“Whether the Department of Homeland Security’s policy for coordinating the ‘disruption’ of wireless communications networks during a peaceful protest is exempt from disclosure under Exemptions 7(E) or 7(F) of the Freedom of Information Act, 5 U.S.C. § 552(b) (2012).”
EPIC President Marc Rotenberg argued EPIC’s case before the D.C. Circuit on December 11, 2014.
The D.C. Circuit issued an opinion on February 10, 2015. The court reversed the district court’s grant of summary judgment, holding that “the [DHS] permissibly withheld much, if not all of SOP 303, because its release, as described in the Holzer declaration, could reasonably be expected to endanger individuals’ lives or physical safety . . . .” The court rejected the lower court’s analysis of the FOIA’s context, structure, and legislative history. Instead, the D.C. Circuit read the relevant words in isolation. “Our consideration of Exemption 7(F)’s scope begins and ends with its text,” wrote the court.
U.S. District Court for the District of Columbia on Remand
The D.C. Circuit sent the case back to the District Court to resolve the matter of segregability of non-exempt portions of SOP 303. The District Court ordered the DHS to submit a redacted version of SOP 303, along with a clean version of the document, for in camera review. On July 6, 2015, the agency released a new version of SOP 303 with previously unreleased information.
U.S. Supreme Court
On August 11, 2015, EPIC filed a Petition for Writ of Certiorari to the Supreme Court. In the petition, EPIC challenged the D.C. Circuit’s expansive 7(F) interpretation. EPIC argues in its cert petition that the D.C. Circuit “construed Exemption 7(F) so broadly that it threatens to conceal from public access all records in the possession of any federal agency upon a mere assertion that the record concerns security procedures.” The appellate court’s decision, wrote EPIC, “is contrary to the intent of Congress, this Court’s precedent, and this Court’s specific guidance on statutory interpretation.”
On January 11, 2016, the Supreme Court denied EPIC’s petition for certiorari.