In a pair of recent essays, Timothy Edgar, the academic director of law and policy at Brown University‘s Executive Master in Cybersecurity program, has outlined the legal basis for how a President Donald Trump could potentially shut down the U.S. internet in response to a national security crisis.
Edger’s concerns stem from Trump’s statements on the campaign trail about “the cyber.” In an op-ed for the Christian Science Monitor, Edgar wrote,
The view that the internet should be open, interoperable, and free from state censorship has been a pillar of American policy since the 1990s. Mr. Trump sharply departs from this establishment consensus. “We’re losing a lot of people because of the internet,” he mused at a rally in South Carolina last year, referring to the online recruitment efforts of terrorist groups. “We have to talk … about, maybe in certain areas, closing that internet up in some way.”
While presidents have abused surveillance powers in the past, we have never before elected a man who openly promises to do so. “I want surveillance of these people,” Trump announced late last year, referring to Muslim Americans. He warned that “certain things will be done that we never thought would happen in this country” including policies that “were frankly unthinkable a year ago.”
In a follow-up post at the Lawfare Blog, he adds,
We already know what Trump thinks. Immediately after suggesting internet filtering, Trump said, “Somebody will say, ‘Oh, freedom of speech, freedom of speech.’ These are foolish people.”
So, in Edgar’s estimation, we need to take seriously Trump’s statements and what they might portend for the future of internet security and privacy. I think this is a wise move.
But certainly our laws and bureaucracy would prevent efforts to surveil and censor the internet on a mass scale, right? Mr. Edgar is not optimistic. In his CSM piece, he reminds us that
If Trump decides to build a great firewall, he may not need Congress. Section 606 of the Communications Act of 1934 provides emergency powers to seize control of communications facilities if the president declares there is a “war or threat of war” or “a state of public peril.” In 2010, a Senate report concluded that section 606 “gives the President the authority to take over wire communications in the United States and, if the President so chooses, shut a network down.” With a stroke of a pen, Trump could invoke it.
In his Lawfare post, he adds
Section 606 has never been applied to the internet, but there is nothing in the law that explicitly says it cannot be. The question is whether the government’s statutory authority over traditional telecommunications under 606 extends to the internet. The issue is similar to the question of whether the FCC can use its regulatory authority to impose “net neutrality” rules under other provisions of the statute. In June 2016, the U.S. Court of Appeals for the D.C. Circuit upheld the FCC’s power to impose “net neutrality” rules.
If Trump wants to “close that internet up,” all he will need is an opinion from his Attorney General that section 606 gives him authority to do so, and that the threat of terrorism is compelling enough to override any First Amendment concerns.
Our commitment to democratic values and respect for freedom of speech may not be as strong as we think and may not be enough to stop such a move by Trump. Other liberal, democratic governments, including the U.K., France, Germany, and Australia, have imposed increased surveillance or flirted with the idea of internet censorship.
Desire for such moves are not unprecedented in the United States and are not limited to Trump and Republicans. Let’s not forget Independent Senator Joseph Lieberman‘s 2010 attempt to create an “Internet kill switch” for the President. Sen. Lieberman pointed to China as his inspiration for giving the President such capability.
We need the capacity for the president to say, Internet service provider, we’ve got to disconnect the American Internet from all traffic coming in from another foreign country… Right now, China, the government, can disconnect parts of its Internet in a case of war. We need to have that here, too.
Given the ongoing erosion of privacy rights across Western democracies and bipartisan support for similar efforts in the United States, Mr. Edgar ominously wars,
Mr. Snowden, in his first interview from Hong Kong, warned against “turnkey tyranny.” One day, he said, “a new leader will be elected” and “they’ll find the switch.”
It is time to prepare for the key to start turning.
Unfortunately, I can only agree.
Correction: This post has been updated to note that Sen. Lieberman was an Independent in 2010, not a Democrat as originally stated.