Does the Communications Act of 1934 contain a hidden Internet kill switch?

• Author: Opderbeck, David W.

Table of Contents I. Introduction II. The War and Emergency Powers in Section 606 of the Communications Act of 1934 A. Summary of Provisions 1. Preferential Communications 2. Obstruction 3. Control over Stations or Devices Capable of Emitting Electromagnetic Radiations 4. Wire Communications 5. Compensation 6. State Powers 7. Limitations 8. Penalties B. Legislative History 1. The Radio Act of 1912 and World War I 2. Emergency Measures and the Conclusion of World War I 3. The Radio Act of 1927 4. The Interstate Commerce Commission 5. The Communications Act of 1934 and the Original Section 606 6. Cold War Amendment of Section 606 After World War II C. Executive Orders and Executive Branch Directives Relating to Section 606 1. The 1950s to the 1970s 2. The 1980s 3. The 2000s Prior to the September 11 Attacks 4. The 2000s After the September 11 Attacks 5. Summary III. The FCC, the Internet, and Section 606 A. Background: The FCC's Regulation of Cable Television B. A New Era: The Telecommunications Act of 1996 C. The FCC, the Network Neutrality Debate, and Cybersecurity D. Applying the Terms of Section 606 in Light of the FCC's Authority Over the Internet 1. Provisions in Section 606 that Relate to Existing FCC Regulations 2. Provisions in Section 606 that Do Not Necessarily Relate to the Modification or Suspension of Existing Regulations 3. Wartime vs. Emergency Powers in Section 606(d) IV. Conclusion: Moving Towards a New Emergency Powers Rubric for Cybersecurity I. INTRODUCTION

Congress has been grappling with proposed cybersecurity legislation for several years. A key area of debate concerns whether the President should have the authority to shut down all or part of the Internet in the event of a cyber-emergency or cyber-war. The proposed Cybersecurity Act of 2009, for example, contained what critics derided as an Internet "kill switch." (1)

At the same time, a heated public debate has been roiling over "network neutrality." Network neutrality is the notion that Internet service providers ("ISPs") should be prohibited from interfering with services, content, or applications on their networks. (2) The Federal Communications Commission ("FCC" or "Commission") has stepped boldly into this fray by issuing policy statements and regulations that assert expansive jurisdiction over the Internet. (3) Many scholars, activists, and policymakers who fear a cybersecurity kill switch are also ardent proponents of network neutrality rules. Holding these positions simultaneously seems to make ideological sense: the underlying concern being that the Internet should remain open and accessible to everyone, regardless of technological platform or content.

But network neutrality advocates who applaud the FCC's interventions in this area have not focused on the problem of cybersecurity. In particular, the FCC's assertion of jurisdiction over the Internet in the name of network neutrality might also imply a vast executive power to control the Internet in times of war and emergency-a kill switch-under laws crafted long before the Internet was born. These executive powers are codified in section 606 of the Communications Act of 1934, (4) which in turn derives from a statute governing radio communications prior to World War I, the Radio Act of 1912. (5) The Radio Act was invoked by President Wilson during the Great War to nationalize all radio stations under the authority of the U.S. Navy. (6) Advocates of network neutrality may therefore have handed the President emergency powers over the Internet due to current statutory provisions that date to a time when all radio communications in the United States were militarized.

This "hidden" Internet kill switch emerged during the debates over comprehensive cybersecurity legislation over the past few years. The Cybersecurity Act of 2009, introduced by Senator Rockefeller, with its explicit kill switch, never emerged from committee. Another similar bill, the Protecting Cyberspace as a National Asset Act of 2010 ("PCNA") was introduced by Senators Lieberman, Collins, and Carper on June 10, 2010. (7) The PCNA retained the broad emergency powers that appeared in the Cybersecurity Act of 2009. (8) Partly in response to concerns over the kill switch, the Cybersecurity Act of 2009 bill was revised to the "Cybersecurity Act of 2010," and reintroduced as amended on March 24, 2010. (9) Under that 2010 Cybersecurity Act, the President would have retained the authority to "declare a cybersecurity emergency," which would trigger implementation of emergency response plans crafted jointly by both private and governmental groups, including owners of critical infrastructure systems and the Department of Homeland Security. (10) This represented a move towards a public-private cooperative model for emergency management.

Debate over the propriety and scope of emergency executive powers in cyberspace continued throughout 2010. Somewhat surprisingly, Senator Lieberman and other sponsors of the PCNA began taking a new tack: they argued that the President already has the authority to shut down the Internet under the Communications Act of 1934. (11) As a report on the PCNA prepared by the Senate Committee on Homeland Security and Governmental Affairs stated,

The Committee understands that Section [606 of the Communications Act of 1934] gives the President the authority to take over wire communications in the United States and, if the President so chooses, shut a network down. But it is not clear that the President could order a lesser action, such as the blocking of a particular malicious signature or directing a company outside of the communications sector, such as an electricity generation facility, to take action to protect its cyber networks. It is this gap that S. 3480 is meant to fill. (12) Thus, the PCNA's supporters argued that they were merely clarifying, and as a practical matter, limiting existing law. (13)

The emergency powers provisions in recent iterations of bills proposed by Senator Lieberman and others have coalesced towards Senator Rockefeller's model of a public-private regulatory partnership without an express provision for executive authority in case of war or emergency. (14) This is reflected in the proposed Cybersecurity Act of 2012, introduced by Senators Lieberman, Collins, Rockefeller, and Feinstein in February 2012. (15) Debate in Congress and among cyber civil libertarians, the cybersecurity community, and private industry has shifted from the kill switch to information disclosure requirements and the extent to which ordinary industry cybersecurity compliance should be required. (16)

The kill switch issue, however, remains very much alive, even if now dormant. The assumption among many policy makers after the debate on the PCNA is that the Communications Act of 1934 ("1934 Act") indeed confers sweeping presidential powers over the Internet. (17) Therefore, the removal of a kill switch from the current version of Senator Lieberman's bill is something of a ruse. Like Godzilla hibernating deep under the sea before a nuclear blast wakes him, (18) the kill switch still lurks in the dark recesses of legislation crafted for pre-World War I radio networks, when military censorship was routine.

Or does it? What authority, exactly, does section 606 of the 1934 Act convey? How might that authority map onto cyberspace? If the FCC's power to enforce network neutrality rules is upheld, can executive power over cyberspace under the 1934 Act be cabined under the express terms of the statute or by other principles?

These are the questions this article will explore. Part II of this article summarizes the current provisions of section 606, examines the context and legislative history of those provisions, and reviews Executive Orders and other policy documents that have invoked section 606. Part III reviews the expansion of the FCC's power over cable television, discusses the present regulatory framework that distinguishes between "telecommunications" and "information services," and discusses the FCC's expansive assertion of jurisdiction over the Internet in the context of the network neutrality debate. Part III further draws these threads together in an analysis of the potential scope of section 606 in light of its language, legislative history, and historical application, and in relation to the FCC's presumed authority over the Internet.

Part IV concludes that Senator Lieberman is right about at least one thing: the problem of executive emergency powers should not be ignored in any comprehensive cybersecurity legislation. It is imperative that the scope of executive powers be expressly clarified and limited. As a move towards such clarifications and limitations, Part IV offers a rubric for policymakers that considers both the network layer affected by emergency measures and the type of measures taken. The alternative, in the increasingly likely event of a major cyber incident, could involve a return to the communications regime of World War I: a re-militarization of our civilian communications networks and a Great Firewall around the Internet. (19)

2. THE WAR AND EMERGENCY POWERS IN SECTION 606 OF THE COMMUNICATIONS ACT OF 1934

   Before analyzing whether or to what extent section 606 might apply to the Internet, it is important to understand precisely what authorities section 606 confers. Subpart A summarizes section 606's express provisions. Subpart B describes pertinent aspects of the legislative history. Subpart C discusses Executive Orders and other executive branch directives that have been issued pursuant to section 606.

   1. Summary of Provisions

      1. Preferential Communications

         Subsection (a) of section 606 provides for preferential communications during wartime. (20) Section 606(a) can only be triggered (1) "[d]uring the continuance of a war in which the United States is engaged," and (2) if the President finds prioritized communications "necessary for the national defense and security."...