While the revolts which have occurred in Tunisia and Egypt against historically oppressive regimes involve different issues, there is no question that the impetus for both was technologically driven. Facebook and Twitter have been integral components in not only organizing and coordinating large-scale demonstrations, but also in providing critical, real-time updates to anti-government forces. The Egyptian government has responded to this reality: as of 5:20 AM Thursday morning, Egypt shut down nearly all Internet and mobile phone access. As of Saturday, mobile phone access had been partially restored. Question: could a similar blackout be imposed in the U.S. as the result of a “national emergency”?
Last June, a bill entitled “Protecting Cyberspace as a National Asset Act of 2010″ (S. 3480) was introduced in the Senate by Chairman of the Senate Homeland Security and Governmental Affairs Committee, Joseph Lieberman (I-CN), and Ranking Member, Susan Collins, (R-ME). Among other things, the bill would authorize the creation of a cyberspace policy office in the White House, as well as a cyber-security center run by the Department of Homeland Security. Perhaps the most controversial provision in the legislation is the one which grants the president the power to “authorize emergency measures to protect the nation’s most critical infrastructure if a cyber vulnerability is being exploited, or about to be exploited.”
Perhaps sensing the public firestorm which might accompany such a bill, a “Myth vs. Reality” page was placed on the Homeland Security and Governmental Affairs website. It states that the “threat of a catastrophic cyber attack is real,” and that such an attack “is not a matter of ‘if,’ but ‘when.’” According to the Senate’s Sergeant at Arms, computer systems of the executive branch agencies and the Congress are now under cyber attack “an average of 1.8 BILLION times per month” and that “malicious cyber activity occurs on a daily basis, on an unprecedented scale, and with extraordinary sophistication.”
Critics of the bill have said such legislation gives the president a “kill switch” to shut down the entire Internet. Yet according to the website, the president already has such power. In testimony before a Senate committee on June 15, 2010, the Department of Homeland Security cited Section 706 of the Communications Act of 1934, which “provides nearly unchecked authority to the President to ’cause the closing of any facility or station for wire communication’ and ‘authorize the use of control of any such facility or station’ by the Federal government. Exercise of the authority requires no advance notification to Congress and can be authorized if the President proclaims that “a state or threat of war” exists. The authority can be exercised for up to six months after the ‘state or threat of war’ has expired.”
The site goes on to ostensibly debunk several other myths. For example, the president cannot “take over the entire Internet,” “conduct electronic surveillance and monitor private networks, any more than is currently allowed under the Wiretap Act, the Electronic Communications Privacy Act, or the Foreign Intelligence Surveillance Act.” Nor would it give the president the power to “regulate the Internet,” or “circumvent or set aside international standards” for IT products or services. Yet the bill would allow the president to make “risk-based security performance requirements” and “order emergency measures for our nation’s most critical infrastructure,” including “telecommunications networks, electric grid, financial system, and other components of critical infrastructure.”
S. 3480 was passed in committee, but that was as far as it got before the 111th Congress adjourned. According to CNN, a “revised version” of the bill will make a return this year, including an ominous provision unmentioned by the HSGA website: “the federal government’s designation of vital Internet or other computer systems ‘shall not be subject to judicial review’” (italics mine). Incredibly, any company objecting to restrictions placed on it during an emergency would still be permitted to appeal–to DHS Secretary Janet Napolitano, whose decision would be final.
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