[Infowarrior] - Why cell phone outage reports are secret

[Richard Forno]

Why cell phone outage reports are secret
Posted: Friday, December 15 at 06:00 am CT by Bob Sullivan
http://redtape.msnbc.com/2006/12/why_cell_phone_.html#posts

Consumers have no idea how reliable their cell phone service will be when
they buy a phone and sign a long-term contract. The Federal Communications
Commission could offer some guidance, but it won't. The agency refuses to
make public a detailed database of cell phone provider outages that it has
maintained since 2004.

A federal Freedom of Information Act request for the data, filed in August
by MSNBC.com, has been rejected by the agency. The stated reasons: Release
of the information could help terrorists plan attacks against the United
States, and it would harm the companies involved.

Complaints about cell phone service are near the top of every list of
consumer gripes. The Illinois attorney general¹s office, for example, last
year ranked cell phone complaints as the fourth-most-common complaint,
trailing only gas prices, credit card firms and home improvement scams.

To find out if a cell phone carrier service will be reliable, consumers are
forced to buy a phone, then use it at home and on their normal commuting
routes. Callers generally get 30 days at most to return a phone if the
service doesn¹t work well enough.

But that test won¹t reveal anything about carriers¹ periodic outages.

The Federal Communications Commission does know something about outages,
however. It has collected outage reports from telecommunications firms since
the early 1990s. Any time a carrier has an outage that affects 900,000
caller minutes ­ say a 30-minute outage impacting 30,000 customers ­ it must
report it to the Network Outage Reporting System.

In the beginning, the reports all were from ³wire line² telephone providers
and were available to the public. But in 2004, the commission ordered
wireless firms to supply outage reports as well. But at the same time, it
removed all outage reports from public view and exempted them from the
Freedom of Information Act.

The FCC took the action at the urging of the Department of Homeland
Security, which argued that publication of the reports would ³jeopardize our
security efforts.²

³The same outage data that can be so useful Š to identify and remedy
critical vulnerabilities and make the network infrastructure stronger can,
in hostile hands, be used to exploit those vulnerabilities to undermine or
attack networks,² DHS said.

'Corporate competition protection'

What use would wireless outage reports have to would-be terrorists? Not
much, said NBC terrorism analyst Roger Cressey, the former chief of staff of
the President¹s Critical Infrastructure Protection Board.

³There is nothing mysterious behind it, it is corporate competition
protection,² said Cressey, now a partner in Good Harbor Consulting. ³The
only reason for the government to not let these records get out is then one
telco provider could run a full-page ad saying Œthe government says we¹re
more reliable.¹²

Cressey added that he couldn¹t imagine a scenario where the reports would be
valuable to terrorists.

In October, MSNBC.com filed an administrative appeal of the FCC¹s rejection
of its FOIA request. The FCC has not yet responded to the appeal.

In its initial answer to MSNBC.com¹s FOIA request, FCC officials cited only
one reason for the denial: ³competitive harm² to companies involved.

³NORS records are not available to the public,² the rejection letter said.
³Given the competitive nature of many segments of the communications
industry and the importance that outage information may have on the
selection of a service provider or manufacturer, we conclude that there is a
presumptive likelihood of substantial competitive harm from disclosure of
information in outage reports.²

That¹s likely true. A report that revealed which mobile phone company
suffered the most outages in a given area would likely impact consumers¹
choice of provider. Such information would be in the public interest,
MSNBC.com believes.

³We believe that this is basic consumer information and we will continue to
fight for your right to know it,² said MSNBC.com editor-in-chief Jennifer
Sizemore.

Explanation doesn't measure up, expert says

The explanation also does not meet the bar set by the Freedom of Information
Act for an agency to decline a request, according to an analysis by The
Reporters Committee for Freedom of the Press.

The competitive harm exemption ³requires fairly detailed explanations by the
company involved as to how the release of information will put it at a
substantial competitive disadvantage,² said analyst Nathan Winegar.

In a subsequent response to a reporter¹s query, an FCC spokesman pointed
toward the second reason for the public record request denial: The 2004
administrative order declaring the outage records off limits to the public.
That order cited both competitive harm and national security.

Al Tompkins, a Freedom of Information Act expert at the Poynter Institute, a
journalism think-tank, said release of the cell phone outage reports would
be ³a tremendous consumer tool,² and compared them to the Federal Aviation
Administration¹s publication of airline on-time records.

³It seems to me that while one could understand it might put one company at
a competitive disadvantage, it would put another at a competitive
advantage,² he said. ³The airwaves are owned by the public. Š The public has
a need to know what¹s reliable and what¹s not.²

Not every mobile phone firm thought the database needed to be hidden from
public view when the FCC decided to make it secret in 2004. Sprint argued
that the commission could ³scrub² the reports of sensitive material before
they were made public and thus serve the ³seemingly divergent needs for
public access and protection of confidential information.²

The FCC chose the blunt instrument.

Another 'national security issue'

Tompkins said the blanket removal of the entire outage report system from
public view was symptomatic of a larger trend in the Bush administration.

³Every time we turn around something else is a national security issue,² he
said.

Furthermore, if some larger pattern of cell phone outages could be gleaned
from the reports, he said, companies might ³fix it, not bury it.²

³I can¹t think of one problem that has gone away because it¹s kept a
secret,² he said.

The Freedom of Information Act, signed into law in 1966, provides specific
procedures for U.S. citizens to gain access to government documents, through
a procedure known as a FOIA request. The law was amended in the mid-1970s in
reaction to the Watergate scandal, with time and fee limits imposed on
government agencies to comply with requests. The law was amended again in
1986, but journalists continued to complain that federal agencies were still
stonewalling. In response to those complaints, in October 1993
then-President Bill Clinton issued an administrative memo calling for
federal agencies to ³renew their commitment² to the spirit of the Freedom of
information Act.

The law was originally intended to make government paper records available
to the public, but gradually has been extended to apply to electronic
records as well.

Anyone can file a FOIA request, but the procedure is most frequently used by
journalists, lawyers and jail inmates seeking more information about their
cases. Many agencies, including the FCC, now allow FOIA requests to be filed
right from their Web sites.