Adam Thierer noted in mid-December that the FCC was considering allowing the experimental use of cellphone jammers in prison. The FCC just issued (PDF) a Special Temporary Authorization to allow the DC Department of Corrections to test a cell phone jamming technology.
This technology sounds like an excellent solution to a serious problem: The illicit use of cell phones inside correctional facilities by prisoners across the country. In particular, the technology appears to be “directional,” meaning that unlike traditional jammers, which simply block signals within a certain radius around the jammer, this technology appears to be capable of blocking signals inside the confines of a particular room or building. In fact, I’m sure millions of Americans would love to see such technologies implemented in cinemas, theatres, and other performing arts venues across the country. I, for one, am tired of having the exquisite acoustic delicacies of Bach interrupted by annoying ring tones, such as the (painfully) immortal “Who Let the Dogs Out?”
So Much for The Rule of Law
But there’s one important problem: The FCC isn’t waiving a rule here against cell phone jammer. unless I’m missing some subtle statutory quirk, they’re essentially “waiving” a statute—specifically 47 U.S.C. 333:
No person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed or authorized by or under this chapter or operated by the United States Government.
You don’t need to be an administrative lawyer to know that agencies can’t just ignore acts of Congress—no matter how good the policy reason for the waiver is. That’s a big part of what the “rule of law” means. Period. Do not pass ‘Go’. Do not collect $3,101.09 (today’s equivalent of $200 in 1935, when Monopoly debuted).
Fortunately, as noted in the WSJ article Adam cited, at least one legislator realizes this and thinks it’s worth fixing: U.S. Rep. Kevin Brady (R., Texas) told the Journal that his office is “drafting the necessary legislation to remove this outdated FCC roadblock.” The FCC, of course, sped right past that particular roadblock. But then, what should we expect from an agency that has, under its outgoing (and none-too-soon!) chairman Kevin Martin, simply disregarded statutory limits on its authority when it found Comcast in violation of the agency’s non-binding net neutrality principles this summer? (My PFF colleague Barbara Esbin has eloquently condemned this violation of the rule of law in, “The Law is Whatever the Nobles Do: Undue Process at the FCC” (PDF).)
Now, when Congress considers this question, let us hope that they draw the right lesson from this episode: Whatever the wisdom of outright bans on particular technologies, writing such bans into statutes is a really bad idea. At least if such decisions were left up to regulatory agencies, they would have the flexibility to decide when to depart from a general ban. Thus, the best approach would be to repeal the ban altogether. The FCC probably already has the authority to ban jammers under Section 302a, which provides that:
The Commission may, consistent with the public interest, convenience, and necessity, make reasonable regulations:(1) governing the interference potential of devices which in their operation are capable of emitting radio frequency energy by radiation, conduction, or other means in sufficient degree to cause harmful interference to radio communications…
A Legislative Solution
Now, if Rep. Brady wanted to establish an orderly procedure for replacing Section 333′s outright ban on cell phone jammers with a more reasonable, and flexible, rule, the bill repealing Section 333 might also simply give the FCC the authority to issue Special Temporary Authorizations like the one the FCC just issued to the DC Department of Corrections—but also require that the agency complete a rule-making proceeding within, say, a year to establish new regulations specifying precisely which jammers would be banned. At a minimum, the new regulations could achieve legally what the FCC is trying to achieve illegally: banning cell phone jammers except for use in correctional facilities and only subject to certain technical requirements intended to ensure that the jamming was sufficiently “directional” not to obstruct cell phone reception nearby such facilities.
But if such directional jamming is really possible, why not allow the use of jammers in performance venues? Of course, some consumers might not actually prefer to suffer through a few stray ring-tones during a movie if it means being able to receive calls on vibrate or text messages or email in case of emergency. But I’d rather leave that decision to private property owners and consumers. These are not questions Congress should attempt to answer: Those answers would necessarily be enshrined in statute, and therefore very difficult to change. Instead, these decisions should be left up to the FCC and resolved through the normal rule-making process. If the initial rule-making bans private uses of jammers, at least there would be an established procedure whereby the rule could be more easily changed in the future, as technology develops.
A Future Without a Jammer Ban
With all such technologies banned today, there is probably little incentive to develop better jamming technology that can be more carefully tailored. But if at least some uses of jamming technology were allowed, there would be a market that could drive the development of better jamming technologies in the future. So if the FCC’s concern were that today’s jammers caused unacceptable levels of unintentional interference to cell phone networks, that problem might yet be solved through technological innovation.
Lest anyone argue that once any use of jammers was allowed, the “cat” would be “out of the bag”—resulting in the disruption of cell phone networks by pranksters, criminals or even terrorists—let me simply suggest Googling “cell phone jammer.” It may not be legal, but Americans can already buy cell phone jammers. The reality is that, without a global totalitarian state, or at least completely sealed borders (an impossibility), completely banning any technology is impossible.
Since today’s ban—and harsh penalties—seems to work well enough to protect cell networks from widespread disruption—or even occasional disruption sufficient to attract attention—it’s not unreasonable to think we might get by just fine if we kept those same penalties in place under a new rule that carefully circumscribed which private users would be allowed to use which technologies. Perhaps then we might all be able to enjoy a movie, concert or other performance in peace—if we chose to.
Many people would probably prefer that solution over the alternative: incorporating into cell phones the kind of ”digital manners policy” (DMP) technology recently patented by Microsoft that would allow a DMP transmitter to order all devices within range that have a DMP receiver to turn off their ring tones, etc. There’s something to be said for Microsoft’s solution from a technical perspective: The DMP could be set to allow me to continue to receive text messages, use the vibrate setting for calls, or use the wireless data network. So a DMP transmitter would certainly be a less blunt instrument than a cell phone jammer. But it wouldn’t be entirely effective unless every cell phone had a DMP chip, which means that the only way to “make the ringing stop!” would be to mandate the adoption of such technology by cell phone managers, banning the sale of non-compliant cell phones, and—if we really wanted to be thorough—sending out the cell-phone Gestapo to round up all the old, non-compliant cell phones out there.
I’m not suggesting any nefarious intent on Microsoft’s part. Like Hamlet (“ There is nothing either good or bad, but thinking makes it so“), I don’t believe a technology can be inherently evil. Indeed, even partial adoption of DMP technologies in cell phones would certainly help solve our “crisis of digital manners.” But I’m more than a little uncomfortable with the idea of creating this kind of architecture of control, by which a third party (not me or the carrier) could manipulate the settings of my cell phone. The potential for abuse of that technology seems even scarier than the potential for abuse of jammers. Even if Microsoft limited the DMP chip’s interface with the cell phone to controlling, say, ring volume or vibrate settings, I’d have to wonder what a good hacker could do with that kind of technology. So while I wouldn’t suggest banning DMPs either, I would hate to see DMP technologies become industry standard merely because the FCC refused to reconsider its decades-old outright ban on radio jammers.
Rep. Brady, our nation turns its lonely eyes (and even more annoyed ears) to you.