False Parallels and Fears in the Case of an “Emergency Internet Powers” Bill

It wasn’t so long ago that, to conservative eyes, the President could do no wrong. No emergency power was too great, too draconian, or too prone to abuse — he must have it! Because, let’s face it, you don’t want the terrorists to win, do you?

Times have changed. After CNET broke a story about a bill that could give the President “emergency powers” over the internet, the conservative side of the tubes went into full panic mode. It’s socialism meets “Fairness Doctrine” — the sum of all fears.

Except, it’s not, really. The bill, S. 773, is an attempt to boost the integrity of the national firewall, to prevent cyberattacks, like the one that crippled Twitter a few weeks back. The means to this indisputably necessary end are, for the most part, blasé: blue ribbon panels, committees, advisors, and money.

Trouble enters at § 18, which provides that the President:

(2) may declare a cybersecurity emergency and order the limitation or shutdown of Internet traffic to and from any compromised Federal Government or United States critical infrastructure information system or network; [. . . .]

(5) shall direct the periodic mapping of Federal Government and United States critical infrastructure information systems or networks, and shall develop metrics to measure the effectiveness of the mapping process;

(6) may order the disconnection of any Federal Government or United States critical infrastructure information systems or networks in the interest of national security;

Expansive control over federal computer systems poses no serious problem. But § 23(3)(B) goes on to define “Federal Government and United States critical infrastructure information systems and networks” to include “[s]tate, local, and nongovernmental information systems and networks in the United States designated by the President as critical infrastructure information systems and networks.” The function of this definition is to include within the swath of regulable networks some computers and systems that aren’t federal, but which are so vitally important to the federal government as to be adjuncts to the government.

I admit to some unease with this plan: it’s not clear how far the § 23(3)(B) definition reaches, and it probably should be. But still, the powers to shut down, map, and disconnect certain computers do not create a power to invade, control, or download information from the same. The reach of the bill should be circumscribed on principle, but the actual dangers to privacy are limited.

Further, for once, this is the right way to draft emergency legislation. Hyperconservative blog RedState draws a comparison between this [non-]seizure of the internet, and Harry Truman’s attempt to literally invade, seize, and use the nation’s steel mills during the Korean War, but the comparison is exactly 180° wrong. For one, no “seizure” would be effected by S. 773, but for another, the steel mill seizure was controversial because Congress said “no,” and President Truman tried to seize the mills anyways. What emerged from Youngstown was a typology of executive power: when the President and Congress cooperate, they can do almost anything together, even on the home front; but when the President acts domestically, against the express direction of Congress, his powers are at their “lowest ebb,” and will almost always fail. The steel seizure was controversial because it fell into the latter category — Congress forbade President Truman from seizing the mills, and he did it anyways — but, because S. 773 is a Senate bill (!!), if passed, it would not run afoul of Youngstown. S. 773 is not controversial for the exact reason that the steel seizure was.

Note, too, that this sort of cooperation between coordinate branches of government, a forward-sighted, democratic method of planning in advance for emergencies, is exactly the sort of process that the Bush Administration repeatedly spurned as a matter of ideology, because people like David Addington felt that the President shouldn’t have to ask Congress. Two years ago, conservatives expected the President to not consult Congress, but do whatever he felt necessary, whenever the mood took him. Today, they don’t even want the President to act with Congress’ express permission. Clearly, when it comes to executive power, conservatives have lost the courage of their convictions. Next time you see a Republican in the White House claiming the need for vast regulatory power, etc., remind them of this day.



  1. Well, obviously you can’t trust Democrats with that sort of power, because they hate America, freedom, and fluffy bunnies.


  2. This makes me think of the failure to get Net Neutrality fully encoded in the law. So… it’s ok for private companies to pay each other to dick around with people’s internet access, but it’s not ok for the President to do it in accordance with a statute passed by Congress via one of its enumerated powers?

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