White House Cybersecurity Proposal Raises Concerns Involving Telecom Act Authority
The White House cybersecurity proposal has raised questions over whether the government could rely on a provision in the 1996 Telecom Act to control the Internet in emergency situations. The absence of any Internet “kill switch” authority in the White House cybersecurity plan was applauded by several entities, but some lawmakers believe the plan should explicitly affirm that the president doesn’t have the authority. Other technology professionals don’t think the Obama administration’s measure indicates any intent to use such authority, they said in interviews.
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Sens. Joe Lieberman, I-Conn., and Susan Collins, R-Maine, included anti-kill switch language in their Cybersecurity and Internet Freedom Act introduced in February. Collins criticized the Obama administration’s plan for its potential to draw from the Telecom Act’s Section 706. That statute allows the president to suspend “all rules and regulations pertaining to the use and operation of telecommunications facilities, public or private during wartime emergencies,” the statute said.
Some telecom attorneys agreed that the president’s authority must be clarified and could be risky if based on a provision that predates the Internet. The debate is about whether section 706 “is the best blueprint for the exercise of presidential emergency power when there’s a cyber attack,” said Nick Allard, a telecom partner at Patton Boggs. “I think in the absence of new Congressional action, the administration would have greater flexibility in determining the basis of their exercise of emergency power under 706 or some other provision.” The same questions surrounding the proposal were raised in the FCC’s open Internet proceeding “about how far the Communications Act goes in covering non-traditional media,” said J.G. Harrington of Dow Lohnes in an email. “It could be risky to rely on an interpretation of the Communications Act to support a government right to take emergency action on the Internet."
Some Internet and technology experts don’t think it’s necessary to make any distinction. Any “kill switch” language would be a “poison pill” for cybersecurity legislation, said Larry Clinton, president of the Internet Security Alliance. ISA agrees with the Senate Homeland Security Committee “that the president already has substantial authority under the 96 Telecommunications Act to engage in whatever appropriate emergency situations that may occur,” he said. “That doesn’t need to be repeated in this bill.” The proposal rejects any Internet shut-down power, said the Center for Democracy and Technology. While the bill doesn’t explicitly say “no shut-down power,” “the absence is an implicit rejection of that power,” said President Leslie Harris. “We're satisfied with the fact that the bill doesn’t confer new powers,” she said.
By focusing on data security, international partnerships and other areas, the administration was going for a comprehensive approach, said Norma Krayem, Patton Boggs senior policy advisor on homeland security. “The president’s abilities to have emergency powers really were a hotly debated topic in Congress,” she said. “The administration is likely to defer to the Congress to work through those issues themselves."
Harris said the idea of “kill switch” authority isn’t realistic: “It’s not like there’s a button out there that the president is going to push. We're not Egypt with a single network and a single point of control. It’s not how the real world works,” she said.