The Center for Democracy & Technology and the Electronic Frontier Foundation say they are concerned about proposals being considered to tackle contraband cellphones in correctional facilities.
“We share the interest of the Commission in protecting the welfare of facility administrators, law enforcement authorities, and the general public. However, mandates for hard kill switches and proprietary technology will create new security vulnerabilities, and the lack of judicial review within the kill switch process will violate established protections for due process,” the groups said in an ex parte filing yesterday in GN docket 13-111. “With this in mind, CDT and EFF respectfully request that the Commission reconsider the following proposals.”
“First, the proposed mandate for a hard kill switch for wireless devices will create new security risks for the general public,” the groups said. “The proposal will force service providers and manufacturers to create a vulnerability in all wireless devices to allow providers to permanently disable a device if it is being used illicitly in a correctional facility. But this vulnerability will not exist in a vacuum, and it will be difficult to secure. As a result, malicious actors may be able to hijack or create their own hard kill signal for their own purposes, regardless of where the phone is being used.
“Moreover, the use of a hard kill switch poses greater risks to users in the event of erroneous Identification,” they added. “If a device is misidentified as contraband and subsequently disabled, the owner of the device will be permanently deprived of their device without any warning or explanation. Given how many Americans rely on wireless devices as a primary means of communication, the use of a hard kill switch could preclude access to friends, family, and emergency services. Ultimately, this mandate represents an overly broad and severe remedy that will undermine the security and integrity of wireless devices.”
“Furthermore, the hard kill switch proposal lacks necessary safeguards to ensure accuracy and preserve due process rights,” CDT and EFF argued. “The prescribed process would compel commercial mobile radio service (CMRS) licensees to permanently disable contraband devices, pursuant to a qualifying request from a correctional facility official that includes specific identifying information regarding the device and the correctional facility. Under these terms, licensees would be thrust into a role typically reserved for judges. Providers would be charged with evaluating whether requests meet the necessary legal criteria without the procedural structure, experience, or institutional authority of the courts.
“To protect fundamental due process rights, the permanent disabling of a contraband device should only occur pursuant to a court order,” the filing said. “In contrast with CMRS licensees, the courts are institutionally isolated from political pressure and vested with the responsibility to provide oversight of law enforcement requests. And in this instance, courts provide a necessary form of judicial review before the state deprives an individual of property. Under the current terms of the proposal, the government would be ordering the effective destruction of a wireless device by permanently disabling it, subject only to the review of a private actor. But before depriving an individual of their property, the government should allow for some form of due process. Without providing for some form of judicial review, the current proposal under consideration by the Commission would fall far short of the requirements established under the Constitution.”
CDT and EFF also said that regarding “potential technologies that may stem the use of contraband wireless devices, we would caution the Commission against a mandate for proprietary technology. In particular, the FCC appears to be considering a proposal that would disable contraband devices through a beacon system and software embedded in wireless devices. Much like the mandate for a hard kill switch, a mandate for proprietary technology to disable wireless devices would represent a vulnerability that would endanger the integrity and security of these devices. It would represent a singular attack point that could be exploited by malicious actors to disable wireless devices. Additionally, a mandate would stifle the development of new innovative solutions that may effectively address the problem at a lower cost by creating new barriers to entry.” —Paul Kirby, firstname.lastname@example.org