How the Internet “Kill Switch” Bill Became the Bulwark of Internet Independence

by Matthew L. Schafer

Last June, speculation began to build that a new cybersecurity bill floated by Sens. Joe Lieberman (I-CT), Susan Collins (R-ME), and Tom Carper (D-DE) gave President Obama the power shut down the Internet.  Despite the blowback, the Senators decided to revisit a comprehensive cybersecurity bill, S. 413, to augment the Communications Act of 1934.

The original 2010 bill, which would have created The Office of Cyberspace Policy and the National Center for Cybersecurity and Communication, was proposed “to modernize, strengthen, and coordinate the security of federal civilian and select private sector critical infrastructure cyber networks.”  The new bill also creates the office, but offers greater restrictions.

“The Internet may have started out as a communications oddity some 40 years ago but it is now a necessity of modern life, and sadly one that is under constant attack,” Lieberman said in June. “It must be secured.”

Whatever the intentions behind the bill, it was subject to a maelstrom of controversy, causing the bill to never see the Senate floor.  At the time, CNET’s Dylan McCullagh, who originally dubbed the bill a “Kill Switch,” went as far to say that the bill would “grant the president far-reaching emergency powers to seize control of or even shut down portions of the Internet.”

“Fundamentally, industry agrees that in times of emergency, all appropriate resources and authorities should be brought to bear,” said Phil Bond CEO of TechAmerica, an industry trade association. “We are continuing to evaluate the emergency powers in the bill to make sure they… mitigate the potential for absolute power.”

The conservative blogger Glenn Reynolds, Instapundit, wrote frankly, “If they shut down the Internet, I’m getting out my gun. And I think everyone should take it as a signal to do the same — because one way or the other, it means the country’s under attack.”

Despite the flurry of accusations around the “Kill Switch,” Lieberman pushed ahead this year, which again reignited the controversy.  Especially in the shadow of dictatorial actions in Egypt and Libya, some feared that the legislation would give the president similar powers to turn off the ‘Net.

These fears, however, are largely unfounded with the introduction of new language in the bill last Friday.  Where before, the ambiguous language made some squirm, it eventually became apparent that the bill’s amending of the Communications Act, in fact, clarified some of the broad powers given to the president in times of war.  Now, it clarifies the powers even more so.  The current bill reads:

“(c) LIMITATION.—Notwithstanding any provision of this Act, an amendment made by this Act, or section 706 of the Communications Act of 1934 (47 U.S.C. 606), neither the President, the Director of the National Center for Cybersecurity and Communications, or any officer or employee of the United States Government shall have the authority to shut down the Internet.

This language brings much needed clarity to section 706 of the Communications Act, which grants the president sweeping war powers to regulate communications.  In fact, the Communications act currently gives the president the power to “modify, change, suspend, or annul [communications] and for any such purpose he is authorized to issue orders directly.”

“Our bill contains additional protections to explicitly prevent the President from shutting down the Internet,” Collins said on Friday.  “While experts question whether anyone can technically ‘shut down’ the Internet in the United States, our bill has specific language making it crystal clear that such actions are expressly prohibited.”

If anything, this bill should be seen as the opposite of an “Internet Kill Switch.”  Indeed, it, for the first time, indicates that the president may not, under any circumstances, shut down the Internet.  Moreover, it explicitly allows companies that would be subject to regulations in a time of “cyber attack” to appeal the regulations in court.

While many were understandably concerned with the bill’s original language, those fears should be largely assuaged.  Indeed, the bill should be welcomed.  While it does seek to give control during a cyber attack to those systems that are “critical infrastructure” that language narrows–not expands–the ability of the government to control the Internet.

Looking at protests in the Middle East, and those governments’ use of their own Internet kill switches, this is a welcome step in preventing the same from occurring in the United States.  Indeed, this Internet “Kill Switch” bill has become the bulwark of Internet independence in the 21st century.


Flickr/Kenyee

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About Matthew L. Schafer

Matthew L. Schafer graduated from the University of Illinois in 2009 with a Bachelor of Science in Media Studies. He later attended Louisiana State University’s Manship School of Mass Communication where he earned a Masters of Mass Communication and Georgetown University Law Center where he earned his J.D.
This entry was posted in First Amendment, Internet Policy and tagged , , , , . Bookmark the permalink.

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