Given the lack of coverage in mainstream media, you might not have heard about the ongoing protest against the construction of the Dakota Access Pipeline immediately upstream from the Standing Rock Sioux reservation aka #NoDAPL. You can find some good statistics on the pipeline and number of arrests associated with the protest here. Setting aside my personal feelings about democracy, freedom to peacefully protest, and how the Sioux concerns seem rather justified in light of the Alabama pipeline explosion, this has now raised an interesting communications issue that only an FCC investigation can solve. Are police jamming, or illegally spying, on communications at the protest and associated Sacred Stone Camp?
Over the last week, I have seen a number of communications from the protest about jamming, particularly in the period immediately before and during the Thursday effort by police to force protesters off the land owned by Dakota Access Pipeline. In addition, this article in Wired documents why tribal leaders connected with the tribal telecom provider, Standing Rock Telecom, think they are being jammed. I’ve had folks ask to speak to me using encrypted channels for fear that law enforcement will use illegal monitoring of wireless communications. As this article notes, there are a number of telltale signs that law enforcement in the area have deployed IMSI catchers, aka Stingrays, to monitor communications by protesters. However, as I explain below, proving such allegations — particularly about jamming — is extremely difficult to do unless you are the FCC.
Which is why the FCC needs to send an enforcement team to Standing Rock to check things out. Given the enormous public interest at stake in protecting the free flow of communications from peaceful protests, and the enormous public interest in continuing live coverage of the protests, the FCC should move quickly to resolve these concerns. If law enforcement in the area are illegally jamming communications, or illegally intercepting and tracking cell phone use, the FCC needs to expose this quickly and stop it. If law enforcement are innocent of such conduct, only an FCC investigation on the scene can effectively clear them. In either case, the public deserves to know — and to have confidence in the Rule of Law with regard to electronic communications.
More below . . . .
State and Local Authorities May Not Jam Wi-Fi Or Cell Signals. Period. No exceptions.
The FCC has long taken the position that cell phone jamming and Wi-Fi jamming violates Section 333 of the Communications Act (47 U.S.C. 333) You can read the 2014 Enforcement Guidance here. As you can see, this is not in the least ambiguous. nor is there any exception for a court order. State and local governments are forbidden by federal law from jamming wireless signals. Period. (Federal law enforcement agencies can use jammers, since federal use of spectrum is not governed by the FCC and Section 333 does not apply to federal users.)
Why Is This Even An Issue?
The cell phone has become one of the most critical tools of protesters, particularly at Standing Rock. Protesters not only coordinate with each other, they document the protest movement in realtime. In particular, the ability to upload streaming media documenting confrontations with authorities has been critical in proving whether local authorities have reacted with disproportionate violence or have acted appropriately. As a result, some law enforcement folks really hate that protesters use cell phones. Rather than solve the problem by modifying their own behavior, some law enforcement folks would much rather prevent protesters from using cell phones effectively.
Some years back, the San Francisco BART police drew widespread condemnation for shutting off cell phone access in BART stations during a protest without a court order. In light of the blowback (which ultimately resulted in California clarifying its law to make such actions officially illegal), local law enforcement authorities are no longer publicly embracing the idea that shutting down cell phone service is a “legitimate tactic” to handle protests. While it would be nice to believe that law enforcement are utterly trustworthy and would therefore never abuse the availability of cheap jamming technology, the proliferation of illegal use of wireless monitoring via IMSI Catchers, aka Stingrays, and widespread use of AT&T’s “Project Hemisphere” to enable law enforcement to buy phone metadata without a warrant, makes it difficult to simply trust that law enforcement will do their job and respect the law.
What Makes You Think There Is Jamming At the #NoDAPL Protest?
On Thursday, just as police prepared to move in, numerous individuals at the protest reported that their previously strong wireless signal was suddenly unreliable and kept cutting out, making streaming video impossible to upload. Because streaming video is very bandwidth intensive, and requires a consistent connection, it is highly vulnerable to jamming. Regular strong cell signal supporting streaming was restored when the confrontation between law enforcement and the police settled down.
Additionally, as noted in this article, there are signs that law enforcement have deployed IMSI catchers in the area. Unlike jamming, IMSI catchers are not per se illegal for state and local law enforcement use under the Communications Act — although using them for general surveillance of a protest without a court order is a violation of the 4th Amendment, and civil rights groups have filed complaints about abuse of IMSI catchers with the FCC. The willingness to deploy IMSI catchers to conduct surveillance is suggestive of a willingness to also employ illegal jamming.
That Doesn’t Sound Like A Lot of Evidence.
Unfortunately, unless you are an expert with a bunch of equipment, it is extremely hard to prove that jamming is taking place. And there are other potential explanations for the observed problems that don’t involve jamming. Networks tend to overload in emergency situations, as happened at the Boston Marathon Bombing, and people mistake the fact that they can’t get through as a product of jamming rather than network overload. Cell phone connectivity in rural areas can be extremely spotty, making overload more likely. And, as we have just seen with the whole “Facebook check-in from #NoDAPL” thing, the protesters on the ground can easily be mistaken about police tactics. So yes, it’s entirely possible that when the police visibly prepared to move in, it caused a spike in network usage that degraded signal.
OTOH, the Standing Rock protest is highly unusual in that the Standing Rock Sioux actually have their own tribal wireless provider, Standing Rock Telecom. As a result, the area has a much stronger signal and more robust network than you would expect for a rural region. The cell network has handled similar upsurges in traffic prior to Thursday’s confrontation with the police. This protest has, after all, been going on for some months and the protesters have relied heavily on wireless to get their story out. This isn’t like Boston where a network was suddenly overwhelmed. This is a case where an active, hardened network started to experience issues at a fairly suspicious time.
Furthermore, as Tribal leaders have explained in this Wired piece, the connectivity for active livestreaming dropped at precisely the moment the police advanced on the protesters, and that only a local television station was able to get video out until service resumed after the police cleared away and arrested protesters. That’s fairly suspicious, since the uptick in traffic occurred several minutes earlier, when the police began their warning to protesters to disperse and lined up their armored vehicles in assault formation. Tribal leaders also stated in the article (but Wired was not able to confirm) that basic voice and text service have experienced consistent degradation of service since the protests began, despite efforts to augment the signal. Again, in light of the fact that the tribe has its own wireless provider, and therefore has worked to improve available signal quality to match the demand over time, the persistence of the connectivity issues — and the total drop of all livestreaming at the crucial time — raise a lot of suspicions.
True, that’s not evidence, which is why the FCC needs to actually go in and investigate. The FCC complaint process is designed to allow the FCC to go an get the evidence. There is no minimum threshold of evidence for the FCC to go and check out why a licensed service is experiencing apparent interference issues. That’s (one of the) the job(s) of the enforcement Bureau on spectrum. When unexplained stuff is happening, find out why. Because whether or not it’s a violation of a law or regulation, the FCC — as custodian of the public airwaves — has a responsibility to make sure that wireless communications actually work and to protect licensees (like Standing Rock Telecom) and wireless users (like the protesters) from harmful interference.
The FCC understands that allegations of jamming are all going to be circumstantial from users who experience problems, and that only an actual investigation by the Enforcement Bureau can prove if deliberate jamming is happening, if there is a source of unintended interference, or if it is just a case of bad coverage. If you look at typical enforcement actions on jamming, you will see they start with a reported pattern that triggers suspicion, followed by an investigation. So the level of proof here is not terribly different from a standard potential jamming complaint.
The Public Interest At Stake Demands Immediate Action.
We are at a time when trust and confidence in our public institutions — particularly law enforcement — is seriously low. I’m not going to debate if that’s fair or unfair. It is. Only the FCC can go in and work with all the parties — the wireless providers, the protesters, and local law enforcement — to find out definitively what’s going on. The FCC, as the federal agency charged with protecting the use of the public airways, is the only expert agency with authority to require law enforcement to disclose their use of any wireless devices (whether for jamming or surveillance) and the only agency with the expertise to assess what is actually happening. If the FCC investigates and finds that there is no illegal jamming happening, then it can settle this concern and remove the cloud of illegal jamming by local law enforcement from the protest.
By contrast, if the FCC discovers that there is illegal jamming happening, it has an obligation to expose the jamming and use its power under federal law to order local law enforcement to immediately stop interfering with the most fundamental First Amendment right of freedom of speech and freedom of the press. Our democracy works (when it does) because we use the power of speech and the power of the press to hold the police accountable if they abuse their power. That is most true in the livestreaming of events, as it allows the public to see the truth on the ground unfiltered by any spin from either side. As the Supreme Court has said, protecting access to the information necessary for Americans to govern themselves and hold authority accountable is “a government purpose of the highest order.” (Turner I).
It falls to the FCC to protect that right and ensure the trust we put in our democracy. The FCC should not hesitate to send Enforcement Bureau staff to Standing Rock to find out what is really happening to wireless at #NoDAPL.
Stay tuned . . .
