Tuesday Briefing

UPDATED---

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. Think of the Y2K crisis and how our weaknesses and reliance on computers were exposed. Thankfully, nothing came from the Y2K crisis

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. Recent news reports reveal attempted cyber attacks on the Federal Government’s websites from North Korea and China; however these attempts have been happening for years. Countries no longer need guns, planes or missiles to attack another country; soldiers armed with laptops from thousands of miles away can cripple a country. The threat is real.

So, under Youngstown, the President would be exercising Constitutional authority under a grant from Congress, either as a national security power or interstate commerce.

However, if these powers were used to circumvent the First Amendment, such as to control blog posts or YouTube postings of protests, then we as citizens 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 on any computer attached to the internet? 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 Democrats were to abandon their own, especially coming in an election year, one where the Democrats 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 resist.

If I were to craft the legislation, I would put in a provision that if the President were to exercise authority under this statute, he/she must present a case before the FISA (Foreign Intelligence Surveillance Act) Court within 48 hours for review and clearance. The FISA Court is adept at hearing National Security cases and keeping the facts secret (to my knowledge, there has never been a leak from the FISA Court). It would also be at the Court’s discretion to have regular reviews of the President’s actions, to make sure that the President is only using his authority for a limited period of time. This would provide an appropriate level of review and protection, ensuring that all three branches would be involved in the process.




[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