Renewed Push to Give Obama an Internet "Kill Switch"

Sen. Joseph Lieberman, I-Conn., right, Republican Sen. Susan Collins, R-Maine,

/ AP Photo/Alex Brandon

A controversial bill handing President Obama power over privately owned computer systems during a "national cyberemergency," and prohibiting any review by the court system, will return this year.

Internet companies should not be alarmed by the legislation, first introduced last summer by Sens. Joseph Lieberman (I-Conn.) and Susan Collins (R-Maine), a Senate aide said last week. Lieberman, an independent who caucuses with Democrats, is chairman of the Senate Homeland Security and Governmental Affairs Committee.

"We're not trying to mandate any requirements for the entire Internet, the entire Internet backbone," said Brandon Milhorn, Republican staff director and counsel for the committee.

Instead, Milhorn said at a conference in Washington, D.C., the point of the proposal is to assert governmental control only over those "crucial components that form our nation's critical infrastructure."

Portions of the Lieberman-Collins bill, which was not uniformly well-received when it became public in June 2010, became even more restrictive when a Senate committee approved a modified version on December 15. The full Senate did not act on the measure.

The revised version includes new language saying that the federal government's designation of vital Internet or other computer systems "shall not be subject to judicial review." Another addition expanded the definition of critical infrastructure to include "provider of information technology," and a third authorized the submission of "classified" reports on security vulnerabilities.

The idea of creating what some critics have called an Internet "kill switch" that the president could flip in an emergency is not exactly new.

A draft Senate proposal that CNET obtained in August 2009 authorized the White House to "declare a cybersecurity emergency," and another from Sens. Jay Rockefeller (D-W.V.) and Olympia Snowe (R-Maine) would have explicitly given the government the power to "order the disconnection" of certain networks or Web sites. House Democrats have taken a similar approach in their own proposals.

Lieberman, who recently announced he would not seek re-election in 2012, said last year that enactment of his bill needed to be a top congressional priority. "For all of its 'user-friendly' allure, the Internet can also be a dangerous place with electronic pipelines that run directly into everything from our personal bank accounts to key infrastructure to government and industrial secrets," he said.

Civil libertarians and some industry representatives have repeatedly raised concerns about the various proposals to give the executive branch such broad emergency power. On the other hand, as Lieberman and Collins have highlighted before, some companies, including Microsoft, Verizon, and EMC Corporation, have said positive things about the initial version of the bill.

But last month's rewrite that bans courts from reviewing executive branch decrees has given companies new reason to worry. "Judicial review is our main concern," said Steve DelBianco, director of the NetChoice coalition, which includes eBay, Oracle, Verisign, and Yahoo as members. "A designation of critical information infrastructure brings with it huge obligations for upgrades and compliance."

In some cases, DelBianco said, a company may have a "good-faith disagreement" with the government's ruling and would want to seek court review. "The country we're seeking to protect is a country that respects the right of any individual to have their day in court," he said. "Yet this bill would deny that day in court to the owner of infrastructure."

Other industry representatives say it's not clear that lawyers and policy analysts who will inhabit Homeland Security's 4.5 million square-foot headquarters in the southeast corner of the District of Columbia have the expertise to improve the security of servers and networks operated by companies like AT&T, Verizon, Microsoft, and Google. American companies already spend billions of dollars on computer security a year.

"Declaration of National Cyber Emergency"
The revised Lieberman-Collins bill, dubbed the Protecting Cyberspace as a National Asset Act, works this way: Homeland Security will "establish and maintain a list of systems or assets that constitute covered critical infrastructure" and that will be subject to emergency decrees. (The term "kill switch" does not appear in the legislation.)

Under the revised legislation, the definition of critical infrastructure has been tightened. DHS is only supposed to place a computer system (including a server, Web site, router, and so on) on the list if it meets three requirements. First, the disruption of the system could cause "severe economic consequences" or worse. Second, that the system "is a component of the national information infrastructure." Third, that the "national information infrastructure is essential to the reliable operation of the system."

At last week's event, Milhorn, the Senate aide, used the example of computers at a nuclear power plant or the Hoover Dam but acknowledged that "the legislation does not foreclose additional requirements, or additional additions to the list."

A company that objects to being subject to the emergency regulations is permitted to appeal to DHS secretary Janet Napolitano. But her decision is final and courts are explicitly prohibited from reviewing it.

President Obama would then have the power to "issue a declaration of a national cyberemergency." What that entails is a little unclear, including whether DHS could pry user information out of Internet companies that it would not normally be entitled to obtain without a court order. One section says they can disclose certain types of noncommunications data if "specifically authorized by law," but a presidential decree may suffice.

"No amount of tightening of what constitutes 'critical infrastructure' will prevent abuse without meaningful judicial review," says Berin Szoka, an analyst at the free-market TechFreedom think tank and editor of The Next Digital Decade book. "Blocking judicial review of this key question essentially says that the rule of law goes out the window if and when a major crisis occurs."

For their part, Lieberman and Collins say the president already has "nearly unchecked authority" to control Internet companies. A 1934 law (PDF) creating the Federal Communications Commission says that in wartime, or if a "state of public peril or disaster or other national emergency" exists, the president may "authorize the use or control of any...station or device."

In congressional testimony (PDF) last year, DHS Deputy Undersecretary Philip Reitinger stopped short of endorsing the Lieberman-Collins bill. The 1934 law already addresses "presidential emergency authorities, and Congress and the administration should work together to identify any needed adjustments to the act," he said, "as opposed to developing overlapping legislation."

This article was originally posted on CNET

[Jeffrey_Arbelaez]

This is clearly a violation of the first amendment. First off, the internet has become place where people can voice their opinions and ideas without being part of a major media outlet. Through blogs and other methods, the internet acts as a safety valve and safe haven for opinions and ideas. If we restrict the internet, we restrict the marketplace of ideas and the expression of individuals and therefore violate the first amendment. Secondly, the 1934 law that created the FCC did not anticipate the coming of the internet and thus cannot be applied to the internet. The internet is not free and we pay internet service providers for access to the internet. In this sense, the regulation of the internet is analogous to the difference in regulation between cable and broadcast. The FCC can regulate broadcast because it is public domain while it cannot regulate cable because consumers pay for cable. The same can be said about the internet. Unless the government provides a free form of internet, the FCC has no jurisdiction over what is published or written on the internet during wartime or peacetime.

[Jeffrey_Arbelaez]

This is clearly a violation of the first amendment. First off, the internet has become place where people can voice their opinions and ideas without being part of a major media outlet. Through blogs and other methods, the internet acts as a safety valve and safe haven for opinions and ideas. If we restrict the internet, we restrict the marketplace of ideas and the expression of individuals and therefore violate the first amendment. Secondly, the 1934 law that created the FCC did not anticipate the coming of the internet and thus cannot be applied to the internet. The internet is not free and we pay internet service providers for access to the internet. In this sense, the regulation of the internet is analogous to the difference in regulation between cable and broadcast. The FCC can regulate broadcast because it is public domain while it cannot regulate cable because consumers pay for cable. The same can be said about the internet. Unless the government provides a free form of internet, the FCC has no jurisdiction over what is published or written on the internet during wartime or peacetime.

[NoWayJose9999]

LIEberman is a disgrace to the American Flag.......
Move to I$rael Joe. That's where your allegiance is....

[oWENISH]

If this is passed, I will drive to this mother ******* front gate and protest until I die of old age. There is no way this will be legal FROM EITHER side. I always tried to be half and half about Obama but now I see, this is a Evil ****. NO BODY has power of the internet. HOW ABOUT THIS. TAKE THE NUKES OFFLINE! Don't let them have access to the ***** WORLD WIDE WEB.

[TomSp2000]

Lest we forget -

1. CONGRESS shall make NO law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

4. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

5. No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Of COURSE they don't want judicial review - the whole thing's patently UNCONSTITUTIONAL.

I think we DO need an amendment, though - "No person shall be elected to any Federal office unless that person has passed a test that demonstrates a reasonable understanding of the Constitution and its limits upon the Federal Government with a passing grade of at least 90%."

[beadwindow2010]

Try it Sambo. On the other hand, why not? He is so stupid (winning - duh) he wouldn't know what to do. Besides, he'll be shining shoes in Grand Central in 2012.

[zefrey]

Hello everyone, this is Zefrey Love, I simply believe there were plenty of protest, long before the Internet, The geographic extent of the popular protests-unprecedented since the 1970s-and the sheer number of participating citizens made it a critical day for Egypt, however having a switch for the Internet just simply shows how the government intends to be over the people, and not the people over the government the way it's supposed to be, this will do nothing but cause more of a up-rising much worse than the Rodney king gathering we all remember, that turned into violence, and destruction, is this what we want? For one man to control our very own freedom of speech, sarcastically, I don't see why not, everything they do now days, is communistic, with the power over the people, and not the people over the government the way it was intended to be. My friends, it did not stop them before we had a Internet, do you really believe a kill switch will make a difference, are just fuel the flame. With all the organizations, they don't need a Internet. Just another way for the government to control and regulate the people, that are the foundation on what they stand on.

[laurenglenn]

Here's a problem with the internet "kill switch"...... they claim that they want it to stop a computerized terror attack from abroad...

So, why not allow for judicial review or an act of Congress like you do for wartime? Surely Congress can come to a consensus rather quickly if attacked.

Also, if the purpose is to stop the attack from overseas, why not just allow the people to communicate within the United States only so that you don't infringe totally on free speech? I just think that Obama is intelligent but there will be people following him that are less intelligent. We don't need a president deciding to kill the internet without judicial review, warrants, and the like just because he feels so inclined. An impeachment trial would take a bit of time to come to pass... and in the process, it's setting a bad precident to allow the president to deny people free speech in a comparable manner as martial law.

[mickeywhite]

Why does Marsha Want Congress to Regulate the Internet? Why not just say NO FEDERAL branch (the FCC and congress and the federal courts included) has any authority to decide or rule on any aspect concerning the Internet?

BUT Marsha Blackburn did Vote FOR: Patriot Act Reauthorization, Electronic Surveillance, Funding the REAL ID Act (National ID), Foreign Intelligence Surveillance, Thought Crimes "Violent Radicalization and Homegrown Terrorism Prevention Act, Warrantless Searches, Employee Verification Program, Body Imaging Screening, Patriot Act extension; and only NOW she is worried about free speech, privacy, and government take over of the internet?

Marsha Blackburn is my Congressman.
See her "blatantly unconstitutional" votes at :
http://mickeywhite.blogspot.com/2009/09/tn-congressman-marsha-blackburn-votes.html
Mickey

[CatholicDads]

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