An Unconstitutional Internet Power Grab

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Bruce Henderson writes for And Still I Persist and is a former Marine who focuses custom data mining and visualization technologies on the economy and other disasters.

Jay Rockefeller, a Democrat senator from West Virginia, worries about the day a "Digital Pearl Harbor" happens. In response to what he sees as an inevitable attack on our communications infrastructure, he and his staff have been laboring to create law that will enhance our cyber security, under the name of S773 Senate bill 773). The Obama administration apparently fears the "digital Pearl Harbor" and their ability to respond-and if the Rockefeller bill is any indication, they think that pulling the plug and a federal certification program will do just the trick. This shows a basic lack of understanding of what the Internet is, how it works, and what it represents to present day America.

In an August 28th article on CBS, Declan McCullagh analyzes the second version of this bill. The original introduced in April was so bad that it was quickly deemed legislative garbage and sent back for complete re-work. This revised version was meant to address the concerns of lawmakers, trade groups and citizens by narrowing its focus and refining its goals. Instead it has unleashed a flood of criticism (mostly on the internet, mind you) on how this would give the government a "kill switch" for the Internet whenever they deem there to be a national crisis or emergency.

As has been demonstrated during times of national and regional crisis - whether we're talking about September 11th, Hurricane Katrina, the San Diego wild fires or the health care proposals, the Internet is an important means of communication and self-organization among the population to respond to any crisis or any debate. Any move to limit this is a perceived as a direct threat to the constitutional rights of assembly and speech upon which the government cannot infringe.

S773 makes no attempt to outline and describe what form of emergency would trigger the use of these broad new powers to limit communication, nor any means by which it could be reviewed by anyone outside the executive branch. The bill also proscribes that the executive branch will perform periodic mapping" of private networks deemed to be critical, and those companies "shall share" requested information with the federal government.

Translation: the U.S. government bureaucracy will be spending your tax dollars to figure out private networks, find choke points and places where they can control the flow of communication. Furthermore, companies (such as your ISP) are going to be required, by law, to supply the federal bureaucrats with whatever network, account, usage and history information they deem appropriate. All in the name of cyber safety, you see.

If that were not enough of an outrage, the bill also establishes federal indoctrination and certification for cyber security professionals. It would require companies that the executive branch deemed "critical" to adopt restrictions on who it could hire to work with network security to a limited pool of those who had undergone government training and certification. You might assume from this that the private sector was completely lacking in any certification or training in cyber security. In fact there is a robust and growing business (aka a "free market") for this type of training that the government would now control and regulate.

The body of this bill continues to reflect a basic lack of understanding of the technology behind the Internet. It is not just a series of "tubes" that are connected end to end. There is no good place for the government or any other body to put a spigot that will allow them to "turn it off." Many companies and organizations are connected through multiple network channels, using independent physical network paths and independent network service providers.

This precisely is to avoid any problems with a single network cable to the outside, or a single provider's network. The providers themselves, from your cable company to big players like Sprint or AT&T, interconnect to themselves and each other at hundreds or thousands of places. Above that they connect with networking companies outside of the US (and US jurisdiction). The protocols and software that run the Internet are purpose-designed to route around slow or blocked spots, to keep the traffic flowing as much as possible even if segments degrade or fail.

While I am sure the people crafting this legislation will wonder why there is an uproar, one only has to pay attention to the reality of the day to understand; As printed newspapers and old guard media quickly fade away, it has been replaced by the raucous free scrum of ideas, discussion and content that is found on the Internet. In one Pew research study they cite as many as 69% of Americans are now getting news from Internet sites. While another study states that the Internet has overtaken newspapers and is climbing fast to challenge television as the public's source of news and information. As has been proven in times of crisis, the Internet can react faster and in many cases better than traditional media outlets.

Because of this new and growing reliance on the Internet as a wide, free, virtual "press", any government control, intrusion or regulation runs afoul of American's most basic sense of rights. By its very nature, the Internet is not easily controlled by any government - it is the ultimate embodiment of free speech and free press. While it did not exist in 1776, I am sure the founders would have loved it.

By Bruce Henderson:
Reprinted with permission from The New Ledger.