The United States District Court for the District of Columbia rejected the agency’s arguments that its protocols surrounding an Internet kill switch were exempt from public disclosure and ordered the agency to release the records in 30 days. However, the court left the door open for the agency to appeal the ruling.
The Electronic Privacy Information Center (EPIC) is seeking “Standard Operating Procedure 303,” also known as the “Internet kill switch” from Homeland Security. The protocols govern shutting down wireless networks to prevent the remote detonation of bombs.
The broad government power to shut down communications networks worries civil libertarians. However, the agency argues the protocols must be kept secret to protect national interests and the safety of individuals.
EPIC filed a FOIA request for the protocols in July 2012. The Department of Homeland Security originally said it could not find any records on the kill switch.
After EPIC appealed, the agency located the protocol, but redacted nearly all of the information. The agency cited exemptions that allow the withholding of information that could “disclose techniques and procedures for law enforcement investigations or prosecutions” or “could reasonably be expected to endanger the life or physical safety of any individual.”
The court said Homeland Security wrongly claimed that it could withhold Standard Operating Procedure 303 as a “technique for law enforcement investigations or prosecutions.”
The court also found that interpreting a safety exemption to “encompass possible harm to anyone anywhere in the United States within the blast radius of a hypothetical unexploded bomb also flies in the face of repeated Supreme Court direction to read FOIA exemptions narrowly.”
While the court rejected the agency’s broad interpretation of FOIA exemptions, it left the door open for further appeals by Homeland Security. The agency has 30 days to release the protocols to EPIC, but the court issued a 30-day additional stay on its opinion to allow the agency time to appeal.