Monday August 31 Briefing

Back to work this morning on WBT/Charlotte. So much to talk about. Health care debate heats up in North Carolina tomorrow as Sen. Burr's town hall forum is scheduled for Charlotte. Sen. John McCain and Sen Mitch McConnell are scheduled to be there.

Newsweek's Jonathon Alter called Rush Limbaugh "the blowhard of our time." Always funny to me that a columnist would rip a talk show guy. Print media has the worst history of any of the journalistic platforms and is where we get the term "yellow journalism." I've dealt many times with the print media and their characterization of what we do. They simply do not like the fact there is no longer a liberal monopoly any more. They probably weren't happy with some who say there should be a Rush Limbaugh school of Journalism created to help with the balance.

Can the President seize control of the Internet in an Emergency?
By: Matt Burke
August 31, 2009

This morning, much of the chattering class is abuzz with the rumors that President Obama is attempting to seize control of the internet. A post on Redstate.com this morning summarizes well the proposal: “S. 773, a bill by West Virginia Sen. Jay Rockefeller, Democrat, has a 55-page draft bill that would create new “emergency” powers for the President, a ‘cybersecurity’ Enabling Act of sorts, that would give the President the authority broad powers over any “non-governmental” computer networks, whether public or private, that are declared by the President to be “critical.””[1]

If the President were to get these powers, it would just be the latest in a historical series of Presidential power grabs that have been criticized later. Such would include President Jefferson shutting down the Supreme Court, President Jackson openly defying a Supreme Court ruling, President Lincoln arresting newspaper editors and President Franklin Roosevelt interning Japanese American citizens. Neil Stevens Redstate.com post details President Truman attempts to nationalize the steel industry during the Korean War and how the Supreme Court denied him this authority in the Youngstown decision.

In short, Youngstown, through Justice Jackson’s concurrence, states that Presidential authority is at its highest point when it is exercising Constitutional authority granted by a bill from Congress. Presidential authority is at its weakest when it has neither Congressional approval nor Constitutional authority. The area in between is known as a “twilight zone”.

Presumably, S.773 is designed to prevent a massive cyber-attack on the United States, similar to the plot of the movie Die Hard: Live Free or Die Hard, one that would paralyze the country and steal national security, or billions of dollars.

If the President were to be given the “emergency” power to seize control of the internet by an act of Congress, would it stand Constitutional scrutiny? Possibly. Congress can regulate interstate commerce, and the internet is certainly an instrument for interstate commerce. Also, using the Die Hard analogy above, such a power would be under national security, and our nation’s military forces do have cyber security as part of their mission.

However, if these powers were used to circumvent the First Amendment, such as to control blog posts or YouTube postings of protests, then we have a right to be alarmed. Also, what about the Fourth Amendment protections of the citizens to be secure in the papers, persons and effects without unreasonable search and seizure? Does S.773 grant the President an open ended warrant to search and seize whenever he/she feels is appropriate? Such a warrant would be easily challenged in any court.

Putting my political hat on, I would be surprised if this bill were to be passed as proposed. Silicon Valley has a strong history of donations and power to the Democratic Party, and I would be shocked if the Dems were to abandon their own, especially coming in an election year, one where the Dems will need all the money and support that they can get from their party faithful.

Taking off the political hat and putting the legal one back on, if this bill were to be passed and signed, there is little we can do to challenge it until it is actually used against someone. I suppose that various media outlets could seek an injunction preventing the bill from applying to them, but that will not touch the other portions of the bill. If this power were to be used as a limited, national security defense that returns the internet to a “status quo ante” after a cyber attack, then the courts would probably look favorably upon this. If it is used a control device over the population, then hopefully the courts would fight.



[1] Neil Stevens, “Democrats Echo Truman and Threaten to Nationalize the Internet”, http://www.redstate.com/neil_stevens/2009/08/29/democrats-echo-truman-and-threaten-to-nationalize-internet/, August 31, 2009