America's National Security And Emergency Preparedness Communications Policy

Tuesday, February 1, 2005 - 01:00

Nicholaus G. Leverett
Kelley Drye & Warren LLP

President Bush's recent nomination of federal judge Michael Chertoff to replace Tom Ridge as the Secretary of Homeland Security provides an opportune moment to examine the history of the relationship between telecommunications and homeland security as well as the current issues facing both the federal government and private entities. It is important for private entities to understand these issues so they can recognize business opportunities to work with the government in ways that will benefit both parties. Knowledge of the government's communications policy may also help private entities anticipate the regulatory demands that are likely to be imposed on them by the federal government. Finally, knowledge of communications procedures could be critical in the event of a natural or man-made disaster.

Many businesses had not considered these matters before the terrorist attacks of September 11, 2001. In the aftermath of the attacks, there were no standard operating procedures regarding how government agencies should communicate via radio during such an incident, thus many first responders were unable to effectively communicate with each other. Phone lines that were busy or non-operational further frustrated communications efforts. In addition to the communications failures among responders at the attack sites, there was also miscommunication among government agencies. The most striking example of this may have been the dispatch of jet fighters to intercept non-existent airplanes while the actual airliners crashed into their targets.

The September 11 attacks served as a wake-up call to the country, and afterward there was a renewed focus on the role of telecommunications in homeland security. The importance of issues such as interoperability, network security, network redundancy, preparation for increased stress to systems and maintaining off-site back-up of information all became very clear. Although many private entities had not previously considered these matters, the federal government has been concerned with these issues for decades. Unfortunately, as became clear on September 11, 2001, the government's previous efforts were insufficient to protect the country from attack or even to adequately respond after the attack.

One of the government's first major attempts to address these concerns came in September of 1982 when President Ronald Reagan created the National Security Telecommunications Advisory Committee ("NSTAC") by Executive Order 12382. The NSTAC, which remains active today, is comprised of up to 30 members from the telecommunications and information technology industries. Its function is to provide the President with industry-based advice and expertise on issues and problems related to implementing national security and emergency preparedness ("NS/EP") communications policy. The underlying idea is to enable the government to make an immediate and coordinated response to all emergencies, whether caused by natural disaster or man-made attack. NS/EP communications allow the President and other senior Administration officials to be continually accessible, even under stressed conditions. The NSTAC states that its accomplishments include the establishment of the National Coordinating Center for Telecommunications ("NCC"), and its Information Sharing and Analysis Center ("ISAC"); the implementation of the Government and NSTAC Network Security Information Exchange ("NSIE") process; and the examination of the NS/EP implications of Internet technologies and the vulnerabilities of converged networks.

Reagan signed Executive Order 12472 "Assignment of National Security and Emergency Preparedness Telecommunications Functions" in 1984. This order serves as a comprehensive document explaining the assignment of responsibilities to Federal agencies for coordinating the planning and provision of NS/EP telecommunications. The fundamental NS/EP objective is to ensure that the federal government has telecommunications services that will function under all conditions, including emergency situations. Executive Order 12472 assigned wartime and certain non-wartime emergency telecommunications authorities to the Director of the Office of Science and Technology Policy.

1984 was also the year that the NCC was established as a result of an NSTAC recommendation to develop a joint government-industry national coordinating mechanism to respond to the Federal Government's NS/EP communications service needs. The purpose of the NCC is to assist in the initiation, coordination, restoration and reconstitution of NS/EP communications services or facilities.

The FCC established the Telecommunications Service Priority ("TSP") Program in 1988. When a natural or man-made disaster occurs, communications repair people may become overwhelmed with requests to restore and replace existing telecommunications lines and services. The TSP program seeks to ensure that after such a disaster, networks, services and phone lines are restored on a priority basis. The TSP Program is a voluntary program under which those lines that are deemed most important to the nation's security and emergency preparedness are assigned priority service.

The TSP Program has two components. The first is a restoration priority. A restoration priority is applied to new or existing telecommunications services to ensure their restoration before any non-TSP services. Priority restoration is necessary for a TSP service because interruptions may have a serious adverse effect on the supported NS/EP function. Restoration priorities must be requested and assigned before a service outage occurs. The second component is a provisioning priority. This type of priority is obtained to facilitate priority installation of new telecommunications service. Provisioning on a priority basis becomes necessary when a service user has an urgent need for a new NS/EP service that must be installed immediately (i.e., in an emergency) or in a shorter than normal interval. Those telecommunications services with a TSP assignment are then installed and restored to service by the communications repair personnel before a non-TSP service. Telecommunications lines serving federal, state, and local government agencies (such as 911 call centers), as well as private firms, can be covered by the program, provided that they are essential for national security or emergency preparedness functions. The FCC is currently partnered with the Department of Homeland Security's National Communications System ("NCS") and three associations in a nationwide campaign to increase TSP participation by911 call centers.

The federal government reached out to private industry in 1991, when the NSTAC and the NCS recommended establishing a government-industry partnership to reduce the vulnerability of America's telecommunications systems to electronic intrusion. The process, entitled the National Security Information Exchange ("NSIE"), was established as a forum in which government and industry could share information in a confidential environment. The NSIE process is still being used today. Advocates of the system say the continued use of the NSIE process is proof that private industry and government will share sensitive security information if such action is mutually beneficial.

In a 1993 attack that foreshadowed worse things to come, a rental van was detonated on a parking garage ramp beneath the World Trade Center Twin Towers in New York City. Six people were killed and approximately one thousand were injured in the explosion. The towers lost power and communications capability, and the average evacuation time was over four hours. This attack exposed vulnerabilities in both the World Trade Center's and the city's emergency preparedness. While tragic, the loss of life in 1993 may have saved lives eight years later. The 9/11 Commission reported that the September 11 evacuation was aided greatly by changes made by the Port Authority in response to the 1993 bombing and by the training of both Port Authority personnel and civilians after that attack. Specific examples of improvements include stairwells that remained lit, tenants who learned proper evacuation techniques during fire drills, and the assistance of fire safety officials who were based in the lobbies of the buildings. The 9/11 Commission concluded that the general evacuation time for most civilians in the tower dropped to less than one hour on September 11.

Another step in the increasing cooperation between industry and government occurred when the NCC-ISAC was established in January 2000. This was the first ISAC with both industry and Government membership. The NCC-ISAC gathers information about vulnerabilities, threats, intrusions, and anomalies from the telecommunications industry, government, and other sources, and then analyzes the data with the goal of averting or mitigating effects on the communications infrastructure.

As noted above, the events of September 11 illustrated that even though the government had made some preparations regarding telecommunications in the event of a disaster, those preparations were not sufficient. In the aftermath of the tragedy, the government has placed an increased emphasis on the role of communications in homeland security.

One of the results of that renewed focus is the intelligence overhaul bill which President Bush signed into law in December 2004. The 563-page bill is the largest overhaul of U.S. intelligence gathering in 50 years. It creates a federal counterterrorism center and a new intelligence director to oversee the Central Intelligence Agency and 14 other spy agencies. Experts say the most important function of the new director will be to prevent the kind of bureaucratic red-tape and missed communications that kept intelligence agencies and law enforcement from recognizing the warning signs of the September 11 attacks. The intelligence overhaul bill has been criticized because its final version does not contain provision for the creation of a cybersecurity chief within the Department of Homeland Security, which was a recommendation in earlier versions.

Another important government action taken in December 2004 was the issuance by the Department of Homeland Security of the National Response Plan ("NRP"). The NRP is a framework for managing domestic incidents and is the result of the Homeland Security Presidential Directive, in which the President directed the development of a NRP to align Federal coordination structures, capabilities, and resources into a unified, all-discipline, and all-hazards approach to domestic incident management.

The NRP contains a number of Emergency Support Function ("ESF") Annexes, which provide structure for coordinating action among agencies during incident management. Through these ESF annexes, the government seeks to coordinate the efforts of Federal agencies, states, Native American tribal authorities and certain private sector entities. It has been noted that much of the nation's infrastructure is controlled by the private sector, not by government, thus underscoring the need for cooperation among public and private entities. ESF No. 2 is the Communications Annex. Its purpose is to coordinate all NS/EP telecommunications services from the telecommunications and information technology industries during the response to a major incident. The Department of Homeland Security determines whether to activate ESF No. 2 based on information from initial state reports and from state and local authorities. Once activated the government follows a number of guidelines:



  • Telecommunications management follows a bottom-up basis. In other words, decisions are made at the lowest level possible, and only those issues that require adjudication or additional resources go up to the next level of management.



  • A Federal Emergency Communications Coordinator in each incident area is the single Federal point of contact to coordinate the appropriate response.



  • ESF No. 2 contains a number of requirements for the government to follow in each of four stages: (1) pre-incident, (2) during the incident, (3) post-incident and (4) during deactivation.

It is obvious that the government has been working diligently to address the problems regarding communications after a disaster. What remains to be seen is whether these steps will improve the country's communications during and after an incident. Outgoing Homeland Security Secretary Tom Ridge recently stated that the incoming secretary should focus on integrating information technology. Whatever the result of the government's current efforts, we can be sure that this issue will remain an important topic.

Nicholaus G. Leverett is an Associate in the Washington, DC office of Kelley Drye in the Telecom Practice Group which focuses on telecommunications policy and related regulatory matters. He may be reached at (202) 887-1212.

Please email the author at nleverett@kelleydrye.com with questions about this article.