Later On

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Ed Brayton:

Sens. Joe Lieberman and Susan Collins released a statement earlier this week about Egypt cutting off the internet in that country, condemning Mubarak for doing so but trying to argue that their bill would never be abused in that manner in the United States. I’ll put the entire statement below the fold:

Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman, ID-Conn., Ranking Member Susan Collins, R-Me., and Senator Tom Carper, D-Del., issued the following statement Tuesday about the Internet shut down in Egypt and pending cybersecurity legislation that would protect the U.S. from cyber attacks.

"The steps the Mubarak government took last week to shut down Internet communications in Egypt were, and are, totally wrong. His actions were clearly designed to limit internal criticisms of his government. Our cybersecurity legislation is intended to protect the U.S. from external cyber attacks. Yet, some have suggested that our legislation would empower the President to deny U.S. citizens access to the Internet. Nothing could be further from the truth.

"We would never sign on to legislation that authorized the President, or anyone else, to shut down the Internet. Emergency or no, the exercise of such broad authority would be an affront to our Constitution.

"But our current laws do give us reason to be concerned. Most important, under current law, in the event of a cyber attack, the President’s authorities are broad and ambiguous – a recipe for encroachments on privacy and civil liberties.

"For example, in the event of a war or threat of war, the Communications Act of 1934 authorizes the President to take over or shut down wire and radio communications providers. This law is a crude sledgehammer built for another time and technology. Our bill contains a number of protections to make sure that broad authority is not used.

"First, the emergency measures in our bill apply in a precise and targeted way only to our most critical infrastructure – the networks and assets most essential to the functioning of society and the economy – to ensure they are protected from destruction.

"Second, our legislation specifically says the President can only invoke the emergency authorities "if there is an ongoing or imminent" attack that would "cause national or regional catastrophic effects" by the disruption of the nation’s most critical infrastructure. The legislative language defines "national or regional catastrophic effects" as, among other things, "a mass casualty event which includes an extraordinary number of fatalities" and "mass evacuations with a prolonged absence."

"Third, any measures ordered by the President must be "the least disruptive means feasible."

"Fourth, when invoking these authorities, the President must notify Congress, and the emergency measures cannot be continued beyond 120 days without congressional approval.

"Fifth, the legislation expressly forbids any action that would violate the First Amendment and also prohibits limiting internet traffic, emails, and other forms of communication (except those between critical infrastructure providers) unless no other action would prevent a regional or national catastrophe.

"Our bill already contains protections to prevent the President from denying Americans access to the Internet – even as it provides ample authority to ensure that those most critical services that rely on the Internet are protected. And, even though experts question whether anyone can technically ‘shut down’ the Internet in the United States, we will ensure that any legislation that moves in this Congress contains explicit language prohibiting the President from doing what President Mubarak did.

All of which might be a bit more comforting if the bill did not contain a provision forbidding the courts from reviewing any decision by the president to shut off the internet. Why get rid of such a crucial check on executive authority if you’re going to insist that such authority can’t and won’t be abused?

As our experience the last 10 years with FISA shows, the executive branch will gladly overreach its authority if it thinks the courts won’t intervene to stop them. Giving them carte blanche without even the possibility of judicial intervention is absolute madness.

Written by LeisureGuy

4 February 2011 at 4:39 pm

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