By John Hendel 07/28/2017
FCC Chairman Ajit Pai wants to rid U.S. jails and prisons of cellphones that could be used to enable crimes. And he generally sides with the wireless industry on policy issues. The catch is that his prison priority and the wishes of the wireless industry are at odds.
Tackling contraband phones is a high priority for Pai, who united FCC commissioners in March to spur the commission to look at technological fixes to the problem of illicit phones in correctional facilities. Keeping phones out of prisoners’ hands has been an elusive goal. Technology may provide a solution where physically banning them has failed. But wireless companies aren’t on board with what prison officials want.
That puts Pai, who likes consensus, in a tough place. He is now trying to navigate between what companies like AT&T, Verizon and T-Mobile want and something he has chosen as a policy priority because of what he sees as years of government inaction on a dire problem.
“These devices are being smuggled into prisons and jails across the country,” Pai told the American Enterprise Institute in May, touting his first-100-days achievements. “They’re used for hits on witnesses, scams and many other illicit purposes that put guards, inmates and all of us at risk.” Earlier in the year, he lamented the more than 8,700 contraband cellphones recovered from federal prisons between 2012 and 2014.
One technology with promise is a nascent and controversial option known as continuous-wave beacon technology. If its software were installed in all cellphones, correctional facilities could use beacon equipment to turn contraband phones into bricks — and ones that emit noise upon detection. The proposal was the subject of recent high-profile meetings in Washington, where Pai received a demonstration.
Correctional industry groups are coalescing behind this approach. Skeptics include the big wireless companies, which derailed earlier corrections-backed attempts to use cellphone jamming — a different technology — to disable contraband phones. Beacon tech supporters want Pai, frequently maligned by critics for his background as a Verizon attorney, to pressure telecom giants to make it a reality. The technology kills phones of inmates and corrections officials alike, although software can be an antidote for phones from the beacon’s effects.
At a private June 29 meeting, Pai faced a united front from the American Correctional Association and Association of State Correctional Administrators alongside Cell Command, the chief vendor of beacon technology. Attendees included corrections officials from Alabama, Arkansas, California, South Carolina, Tennessee, Virginia and Washington, D.C., and staffers working for Republican Reps. Jeff Duncan, Trey Gowdy and David Kustoff as well as FCC General Counsel Brendan Carr, the administration’s nominee for the open GOP commissioner spot.
The American Correctional Association advocates “strongly for beacon technology as meeting 100 percent of ACA’s requirements,” government affairs director Eric Schultz said, according to meeting disclosure records.
Using different technology doesn’t change wireless companies’ opposition. Beacon technology is “equally problematic” as jamming “but of a different nature,” CTIA Assistant Vice President Brian Josef told POLITICO. “We would be concerned with anything that could potentially be a sweeping technology mandate in this area.” Concerns of CTIA, which represents wireless companies, are many: cybersecurity vulnerabilities, cost and implementation messiness.
In a round of comments to the FCC this month, AT&T, T-Mobile and CenturyLink all offered individual criticisms of the beacon. AT&T predicts “numerous negative consequences,” arguing the FCC would violate principles of technology neutrality were it to push for the beacon. T-Mobile raised the prospect of the technology’s abuse and suggested a mandate would be impossible without legislation. CenturyLink’s comments suggested the beacon would run into implementation struggles but said “it is an alternative that should be explored further.”
In addition to opposition from the wireless industry, the technology and its vendor also face concerns about civil liberties and whether regulators are playing favorites. Republican FCC Commissioner Michael O’Rielly raised concerns at the commission’s March meeting, arguing a beacon mandate would not be technology-neutral.
Politics “is playing a huge role in the visibility of this technology,” said an industry official with decades of experience in communications interception technologies. The person requested anonymity due to involvement in these industry debates. He cited transition-period, effectiveness and cybersecurity concerns and raised others — such as whether beacon-hunting software on every phone would drain batteries.
Cell Command defended its offering. “We need the FCC’s assistance to require the carriers, or we need the carriers to voluntarily agree to push it,” said CEO John Fischer, who demonstrated the technology to Pai and hopes for voluntary industry cooperation. He says costs to consumers and manufacturers, which would eventually ideally include the technology when phones are manufactured, would be minimal, with correctional institutions spending the money to implement the system. Analysts haven’t yet estimated a potential market size.
He’s promoting beacon technology over other proposals, such as jamming and another called managed access — where carriers partner with prisons to exclude unauthorized phone numbers. Correctional technology firm Global Tel Link, which also tackles the problem of contraband phones, recommends what it calls a blended technology approach, combining multiple methods, and in recent comments to the FCC lauded the beacon approach as showing much promise. Cell Command’s recent regulatory comments blamed the wireless industry for “misunderstanding” the technology and disputed that it would amount to any mandate.
“The corrections leadership across the country is willing to help Chairman Pai reach an agreement with the carriers,” said former South Carolina Department of Corrections Director Jon Ozmint, now a consultant who has worked with Cell Command and helped organize the meeting. Corrections leaders will “compromise” and not push jamming if the FCC and wireless companies are “willing to give us a solution that works,” likely the “more palatable middle ground” of beacon technology, he said. He hides no frustration with the wireless industry, which he calls “so cold-hearted” and favoring, he believes, revenue from contraband cellphone prepaid minutes: “We get the feeling that it’s nothing more than greed.”
Brookings Institution fellow Nicol Turner-Lee cautions that Pai should proceed carefully if he follows through with action.”Is it so simple?” she asked of the technologies and the promises their vendors make. “It’s very important that Pai thinks through what will be feasible, cost-effective and legally sustainable.”He will likely have to “err within the realm of his authority,” she said in an interview, suggesting a technology such as Cell Command’s may raise practical issues and trigger pushback on account of civil liberty concerns. “It sounds simple to actually implement, but it’s probably more complicated than we think.”
The wireless industry reported 262 million smartphones in active use in 2016, all of which would ideally feature the beacon software under Cell Command’s plan, in a bid to halt the few thousand contraband phones in prisons each year. Fischer concedes that due to monopoly concerns, Cell Command could license the tech to other companies, with a caveat: “Every time you license another company, you peel back a layer of that security.”
He proposes tiers of affordability for corrections officials, who could pay as much as $200,000 for equipment to wipe out contraband phones over a wide territory or “a couple thousand” dollars for smaller devices that cover 20 meters per device. Guards “could put it on their belt,” he said. His demonstration involves a briefcase full of phones, and he uses such a device to temporarily disable them. Several blare immediately once the beacon is emitted: “This mobile device is not authorized to operate in this correctional facility. The device is shutting down.” The phone is bricked, unable to tap into Wi-Fi or use its camera. Fischer acknowledges ongoing patching would be needed to fix the software’s cybersecurity vulnerabilities and that as many as 20 percent of phones wouldn’t be able to receive his Cell Warden software update over the air, with a lag period to install on older phones.
Politicians’ concerns about such problems as opioids, meth and other crimes “is the selling point politically,” said Cell Command Chairman Rob Smyjunas. “That’s being controlled out of jails. The biggest part of identity theft is being done out of jails.” Federal officials see the presence of cellphones a longtime dire threat in U.S. facilities, with life-or-death stakes.
Administration officials know the problem well. Vice President Mike Pence and U.N. Ambassador Nikki Haley signed a letter last year — when both were governors — pressuring the FCC to allow flexibility on technology to combat contraband cellphones. Pai partnered with Haley last year for a field hearing and joint op-ed.
FCC spokespeople declined to comment on Pai’s views of the technology, and the commission proceeding is ongoing. The chairman “didn’t tip his hand about any type of technology over another,” said Ozmint, yet he comes away encouraged due to the meeting happening at all. “I don’t think Chairman Pai wants to be a lapdog to the [wireless] industry.”