Don't let a president turn off the Internet

San Francisco Examiner
Sep. 02, 2009

Sen. Jay Rockefeller’s revised Cybersecurity Act of 2009 is worse than the original version he unveiled in April. That one drew well-deserved derision from civil liberties advocates left and right, along with Silicon Valley executives fearful that their company assets would be confiscated by government fiat. The West Virginia Democrat’s new version is full of vague legislative language that’s the public policy equivalent of throwing the barn door open to horse thieves.

As the Electronic Frontier Foundation’s Lee Thien told CNET: “The language has changed, but it doesn’t contain any real additional limits. It simply switches the more direct and obvious language they had originally to the more ambiguous.” Thien added that the bill contains no administrative or appeals process to limit what he describes as the “amorphous” powers granted to the president.

Just how amorphous is seen in the bill’s grant of presidential authority to “declare a cybersecurity emergency” and then shut down privately owned computer networks (i.e., the Internet) without defining what computer networks are critical to national security or what defines an emergency of sufficient seriousness.

That means the job of defining those critical elements is left to the first president who wants to be the digital age’s Harry Truman. Under the pretext of a national security emergency during the Korean War, Truman seized the nation’s steel mills in 1952 while planning to force U.S. Steel and nine other steelmakers to accept union wage and pension demands that the companies claimed would put them out of business. But the U.S. Supreme Court ruled 6-3 in Youngstown Sheet & Tube Co. v. Sawyer that the chief executive lacked the authority to seize private property on the grounds of national security.

With no clear definitions of these factors, nothing would stand in the way of an ambitious chief executive — likely egged on by a Rahm Emanuel-esque adviser sensing opportunity in a crisis — willing to act and then say, in effect, “So sue me.” Considering the thousands of cyberattacks already being mounted against U.S. defense networks from China, Russia and elsewhere, the day for such action might be closer than anybody realizes.

Note also that the Rockefeller bill does not say whether these cybersecurity threats must come only from overseas sources or might also encompass domestic threats. Given the Department of Homeland Security’s report branding those against abortion, military veterans and advocates of stronger immigration laws as potentially violent “right-wing extremists,” what’s to prevent a presidential seizure of the Internet to stop their digital communication? This is a bad bill that ought to be withdrawn.