When two countries dismantle the Internet in three weeks, it’s tough not to turn the conversation on ourselves. In January, Egypt’s flailing autocratic regime ordered government-owned Internet service providers to pull the plug. The next month, Libya, embroiled in violent unrest, shut down the primary ISP, also state-owned. Now Syria shut down that country’s access.
The turmoil abroad prompted some Americans to ask an uncomfortable question: Does the president have the right to shut down the Internet? The United Nations would say no, at least in light of their recent proclamation that Internet access is a human right. Google and US officials recently accused the Chinese government of interfering with its Gmail service for politicians and Chinese political activists—and this was little more than a year after the company accused Beijing of sponsoring politically motivated attacks against the search giant.
Given that this is a pressing global issue, the better question might not be if the president has the right to shut down the Internet, but whether he should.
Yes, say the majority of Americans. Back in October, months before protests began to sweep the Middle East, 61 percent of people polled by Unisys said the president should have the power to control, or even shut down, parts of the Internet in the event of an emergency. But how likely is such a catastrophe to befall the country—and how dire would a crisis have to be for Americans to really be okay with the government hitting the kill switch?
In fact, the president already has the right to take control of the Internet under section 706 of the Communications Act of 1934, which states that in wartime the president can close “any facility or station for wire communication.”
Though this act clearly precedes the Internet age, a 21st-century policy makeover has been a tough sell. Two years ago, Senate Committee on Commerce chairman Jay Rockefeller and Senator Olympia Snowe of Maine introduced a cybersecurity act that would have provided for the addition of a National Security Advisor reporting to the president.
“Nearly 90 percent of our nation’s networks are owned and operated by the private sector. Securing cyberspace must be a collaborative effort between our government and private sector,” read a March 2010 draft of the bill-in-progress.
The senators introduced the bill months after Melissa Hathaway, the then-acting cybersecurity chief at the National Security Council, published a 60-day review in which she called for private-public partnerships and oversight by a central White House office—not myriad Federal ones. That kind of collaboration meant using security software already on the market and sharing intelligence with “key private sector officials” in an effort to stem identity theft and attacks on the government’s own infrastructure.
The senators repeatedly insisted that the cybersecurity bill did not provide for a so-called kill switch allowing the president to pull the plug on the Internet, but it was tabled nonetheless amid outrage from civil liberties groups that questioned whether allowing the president to disconnect “critical” systems in the event of an emergency meant the government could effectively shutter private networks.
The bill was reborn in January, however, as the Cyber Security and American Cyber Competitiveness Act of 2011, legislation sponsored by eight senators, including Senate Majority leader Harry Reid, John Kerry, Dianne Feinstein, and Rockefeller. The proposed bill softens the Rockefeller-Snowe bill by emphasizing resiliency over any so-called kill switch.
“I can’t envision a case where national security would trump freedom of information, or where shutting down the Internet entirely would be necessary,” said Jillian York, who coordinates the OpenNet Initiative, a research project run by the Canadian consultancy SecDev Group and scholars at Harvard University and the University of Toronto.
York warns that the bill combines vague phrases such as “critical companies” with scant accountability. The bill, she argues, allows the government too much authority in shutting down websites without a court order, a scenario she likens to the Department of Homeland Security’s takeover of dozens of sites due to alleged copyright violations. In November alone, it seized more than 70 sites.
Moreover, adds Rebecca Jeschke, media relations director for the Electronic Frontier Foundation, an ill-defined bill has the potential to stifle freedom of speech, even if Internet access itself isn’t a right, per se.
“If there were a virus that could cause structural damage to the Internet or other physical resources, or risk the exposure of state secrets, then perhaps some traffic restrictions that would halt the spread of the virus would be appropriate,” she said. “But it should be as narrow as possible a restriction. In times of crisis, we need to able to debate the situation—it’s the American way, and protected by the Constitution. Nowadays, that debate happens online.”