The Making of an “Unblockable Presidential Text Messaging Service”
By: Stephen Goldmeier
Tags: Net Neutrality, FCC, Politics, National Security

The Making of an “Unblockable Presidential Text Messaging Service”

All it took was a president, a federal agency, two houses of congress, a hundred million dollars, and a global war on terror.

Federal Communications Commissioners inspect the latest in television, Washington, D.C., December 1, 1939

As with all slightly-nefarious bureaucratic dealings, it sounds dry when you say it out loud.

Who would object, one might reasonably ask, to a national network for disseminating safety information? And who would object, one might further inquire, to an opt-out provision for those carriers actually tasked with maintaining that network? And what is the problem, one might finally wonder, with an exception to the opt-out procedure for high-priority nationwide emergency governmental alerts? Who, one might more pointedly observe, cares?

But it all starts to sound not-so-small when you muscle those facts around and shove ’em into some context until they reveal a more interesting story. When you do that, you get headlines like this: “Do You Think Donald Trump’s Tweets Are Bad?” “Starting January 20, Donald Trump Can Send Unblockable Mass Text Messages to the Entire Nation.” “If Trump is president, he’ll make the Wireless Emergency Alert system his own personalized Twitter.”

So. Part of me loves the dystopian idea of cell phones quietly buzzing away with alerts saying things like “Crooked McDonalds drive thru operator would not give me honey mustard sauce. Sad!” as Washington, D.C. crumbles into ashy ruins. (Another part of me obviously hates this idea.)

Yet a third part of me, though, wonders how this came to be.

I must say, I am really glad I interrogated that third part of myself, because there are a lot of interesting little details in the saga of the development of the presidential emergency alert system. Join me, won’t you, on a journey through the winding halls of our federal government, with a few detours into the Global War on Terror and, eventually, the board rooms of the country’s biggest cell network carriers.

Our tour begins at the FCC.

The FCC is a really strange organization, and I was fortunate enough to spend a semester diving deep into its purpose and history in law school. But outside of law-school-confined, semester-long explorations of administrative rule-making in communications law, the FCC doesn’t frequently grab attention.

The agency had a pretty high-profile period in the early to mid 2000s when, under George Bush’s appointees, the commission made cleaning up “indecency” on television its number one priority. The FCC became a topic of public interest again soon after, in the late 00’s, when anyone who was tracking current events was talking urgently at dinner parties about “net neutrality” (the threat hasn’t gone away, even if the dinner party conversations have changed; I digress). The short of it is that the priorities of the FCC are set by the executive branch, which means that you can get a pretty clear picture of what a president considers the primary national communications concern from what their FCC is doing. So: George Bush worried about Janet Jackson’s breasts, Barack Obama worried about piracy and internet regulation.

Anyway, somewhere in the large eight-year window that was the FCC under Bush appointees, someone got it in their head that people didn’t watch over-the-air television as much as they used to, so our government needed something to supplement those screeching warnings that so often interrupted “Where in the World is Carmen Sandiego?” (Your own experience may vary.) This desire was given its own shade of urgency in a world where we were expected to have a working knowledge of what color corresponded to how worried about a seemingly-inevitable terrorist attack we should be each day. Terror alerts ranged from an alarming bright orange to a VERY alarming bright red. Our risk, in turn, ranged from high to VERY high.

In such a dangerous world, in a time of global war against terrorism, one must stay informed. And what better way to keep people informed than flashing these alerts to cell phones?

With that wild idea, and in that climate, arose a bill tasking the FCC with creating just such an emergency cell-phone alert network.

The primary direction and architecture of this network was described and funded in an act called the “Warning, Alert, and Response Act.” It was introduced by the 109th Congress around 2008. It gave the FCC approximately $100 million to research, build, and implement the network. It mandated that the FCC create and regulate the technology, and it invited carriers to opt into using the technology (nearly all carriers have).

It also included a provision authorizing carriers to allow individual subscribers to opt out of the alerts if they so requested. But not all of the alerts: in Section 602(B)(2)(e), the act says that subscribers can block any alerts created by the system except those issued directly by the president.

There it is: one line in this gigantic piece of legislation describing this gigantic federal program, now getting people riled about unblockable presidential text messages.

The slate of legislation that contained this act was not actually about the FCC or cellular technology. Given the animating purpose, it’s no surprise at all that the bill carrying this thing was in fact about national security, as it seems everything was during that time. It was just one small brick in a complex structure of legislation primarily focused on, of all things, the security of America’s nautical ports (as well as a handful of amendments and updates to the real grandfather of the at-the-time war-on-terror status quo, the Homeland Security Act of 2002). And of course the timing was deeply influenced by Hurricane Katrina, another event that has had outsized impact on the legislative imagination but a disappointingly small impact on needed changes American lives; this also explains the port- and nautical-focused angle of the bill.

The portions of the bill creating this ostensibly safety-focused alert system were not even part of they bill at first. They were added via an amendment when this bill first appeared in the Senate after passing through the House. The amendment was proposed by a man named Jim Demint, whose name you might recognize. He’s been a prominent voice in conservative American politics for quite some time, and his aforelinked Wikipedia article could give you some more context on the guy.

So this piece of legislation worked its way through congress, picking up appendages like this one, as all legislation does, and eventually graduating into the real world. Once there, it sat quietly and likely infrequently read, waiting for the moment when it could shine, while the FCC and the major cell service providers put it all into effect.

The law’s moment to shine, it turns out, is now, when it gets rebranded as a mechanism for unblockable late-night texts from a commander-in-chief already prone to late-night missives.

For this story to go exactly as it did, it required a few ingredients. First, it required an executive agency that could coordinate large-scale programs like this. In this case, that agency was the FCC, which developed the technical specifications and negotiated deployment of the technology to the nation’s largest cell carriers.

Second, it required complicity from cell network carriers. All of the major carriers joined this crusade for public safety, creating this universal inroad to our inboxes. (Carriers could, of course, opt out, but they would need to alert customers if they did. I’m imagining the letter they’d send to their customers: “Thank you for choosing Verizon! If there’s a terrorist attack, you’ll be last to know!”)

Third, it required a climate of heightened concern for national security, in a time when the United States was firmly engaged in a “global war on terror,” and the citizenry was firmly terrified of basically everything.

There is no reason at all to think that Donald Trump is going to use this system in any surprising or abusive ways. But that’s not what makes this whole thing interesting. This is a story of how a presidential regime can consolidate executive powers in very tiny ways, such that the full force of those efforts is not revealed until years later. It’s a story of what happens when politicians work in concert to create a thing that the American people don’t even realize exists.

And we never do realize these things exist. Not until we see their surprising repercussions marshaling on the horizon.