Last Week in Tech Law & Policy, Vol. 37: Wireless Emergency Alerts Improved by Federal Communications Commission

(By Eilif Vanderkolk, Colorado Law 2L)

A Speedy Manhunt

In mid-September, Ahmad Khan Rahami allegedly committed terrorist bombings in Manhattan and the Jersey Shore . Rahami was arrested on the Monday following the bombings, shortly after New York officials had issued a Wireless Emergency Alert (WEA) naming Rahami as the primary suspect. The alert, received by all smartphones located in the five Boroughs that had not opted out, looked like this:

WANTED: Ahmad Khan Rahami, 28-yr-old male. See media for pic. Call 9-1-1 if seen.

Mayor Bill de Blasio has credited the alert with helping in tracking down Rahami’s whereabouts, and the short turnaround between the issuing of the alert and Rahami’s capture does lend some credence to his claim.

However, a large number of critiques of the format of the message emerged after it was disseminated in such a high profile case. The WEA did not contain a picture of Rahami or a link to one, it was limited to 90 characters and was therefore quite brief, was not sent to smartphone owners who opted out of all WEA messages, and was only sent in English (despite the fact that New Yorkers speak over 200 languages).

All of these limitations are dictated by the rules that the FCC adopted when the WEA system was originally created in 2008. However, just 10 days after Rahami’s capture, the FCC released a new Report and Order updating the WEA system to account for modern smartphone capabilities.

FCC to the Rescue

On September 29th, the Commission released its Report and Order and Further Notice of Proposed Rulemaking in the matter of Wireless Emergency Alerts. This order passed on a 4-1 vote, with Commissioner O’Reilly approving in part and dissenting in part. Specifically, this order adopted:

  • An increase of the maximum character length for alerts from 90 to 360
  • A new category called Public Safety Messages, intended to provide an advisory that prescribe actions likely to save lives
  • A requirement to support URLs and phone numbers in Alert Messages
  • A requirement to support Spanish-language Alert Messages

Additionally, the Commission adopted rules to meet alert originators’ needs for the delivery of the Alert Messages they transmit, and created a framework that will allow emergency managers to test, exercise, and raise public awareness about WEA

While these rules do address some of the critiques of the Rahami alert, they do not completely dispose of them. Messages still cannot contain images, though they can be linked to with a URL, and can only be sent in English or Spanish. Without the ability to include a photo, all of the users who simply see the body of the alert and dismiss it will miss out on critical information that they might process just by otherwise seeing an alert with an embedded picture. Additionally, in this particular situation, it would have been beneficial to be able to reach communities that might speak primarily Pashtu, Farsi, Dari, or Arabic and are less fluent in English

Alarmist Alerting

Despite the speedy resolution of the Rahami manhunt, there has been some pushback on the idea of releasing information in this way at all. Bandana Kar, a professor of geography at the University of Southern Mississippi who has studied the alert system, said that the use of a WEA alert “was very troublesome” and that “the alert was very unspecific and open-ended.” Some of these concerns over specificity have been addressed by the FCC’s new standards, but there is still the issue of how recipients will respond to these types of messages. Racial profiling can occur when the available images are unclear, and individuals might panic when they receive a vague message. While mass panic is rare in emergency situations, it would only take one poor decision to create a tragic case of mistaken identity.

Finally, alert fatigue remains an issue. WEA allows users to opt out of receiving alerts, and while most would probably agree that this event was a worthwhile use of the system, many people opt out of alerts to avoid receiving weather alerts and AMBER alerts that they don’t find useful and could potentially miss critical alerts when they do. This is not true for the other national alert system, the Emergency Alert System (EAS), which blankets radio and television stations, and requires providers to carry the alert (even over the protests of local broadcasters). Alert systems are available to a wide variety of federal, state, and local offices, and the preservation of user participation is an important goal as we move into a modern alerting paradigm.

Other questions still remain in an evolving ecosystem of information sources and alert originators, such as where or when WEA messages should be used, how this technology can be best adapted to consumer expectations, and how it could be improved in the next round of Commission rules.