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July 12, 2012

President Obama Signs Executive Order to Control Internet during Emergencies

By Peter Bernstein, Senior Editor

Given the fuss about anything relating to the Internet, it is hard to imagine why this item did not cause so much as a ripple of controversy. Maybe the heat wave in Washington, D.C. has people in a stupor. 

What am I talking about? Back on July 6, President Obama issued an Executive Order, “Assignment of National Security and Emergency Preparedness Communications Functions.” It allows the federal government to take control of all communications capabilities, including those of service providers of all sizes and capabilities, during emergencies. 

One way to look at this is that the feds would hog all of the communications channels and bandwidth. Another is to say as a few critics have, that this give the president the power of having a “kill switch” on the Internet. No matter how you wish to characterize it, this is big and worth a bit of contemplation.

Delineation of responsibilities  

The Order, takes most of the US government’s existing emergency communications preparations, and codifies who should do what. Those who have commented on have remarked on its sensibility based on the explicit statement that when real catastrophe strikes the nation the government: 

“Must have the ability to communicate at all times and under all circumstances to carry out its most critical and time sensitive missions.. Such communications must be possible under all circumstances to ensure national security, effectively manage emergencies, and improve national resilience. The views of all levels of government, the private and nonprofit sectors, and the public must inform the development of national security and emergency preparedness (NS/EP) communications policies, programs, and capabilities.”

The various sections delineate duties. 

They start with, in accordance with Presidential Policy Directive-1 of February 13, 2009 (Organization of the National Security Council System), the Director of the Office of Science and Technology Policy (DOSTP) being instructed to issue an annual report. It is to detail any changes that should be made to the national security and emergency preparedness (NS/EP) communications programs, capabilities, and policies. The DOSTP is also mandated to ensure they are up-to-date on the readiness of NS/EP systems, and advise the President on a variety of matters including radio spectrum prioritization.

The Order also outlines responsibilities for the:

  • Secretary of Defense
  • Secretary of Homeland Security
  • Secretary of Commerce
  • Administrator of General Services
  • Branches of the Intelligence Community
  • Federal Communications Commission

All seems good so far, right? 

Here is the rub

Read closely Section 5.2. Surprise!

 “The Secretary of Homeland Security shall: … satisfy priority communications requirements through the use of commercial, Government, and privately owned communications resources, when appropriate.”

You read correctly. Based on a declaration of a state of emergency, the government can literally commandeer “E”verything.

Nobody will begrudge the fact that, should a horrific situation occur, the government’s ability to communicate directly with the entire citizenry is paramount. It is the right thing to do. The trouble is that the order, for good reasons (including not giving terrorist good ideas on how to totally disrupt the country), is purposefully vague on what such a state of emergency might be. Given the discretion to declare one, this certainly gives one pause. What are the circumstances that could trigger such a determination? The answer is in essence that we will not know until we encounter them. 

This is going to create a lot of second guessing. If I cannot use my cell phone, telephone or both via VoIP on the Internet, or send text messages to loved ones and friends, it had better be a case of “apocalypse now,” because pity the person who will have to explain why if it is not. My problem with this is if a cyber attack managed to cripple our electric grid, much of this is mute. After all communications run on electricity and generators can only last so long and only provide a fraction of the capabilities we are used to. In fact, while I am not a survivalist, I do keep a battery powered radio at hand with plenty of batteries — something that came in handy during power outages this year and last in the Northeast. I also never have less than a quarter tank of gas in case I need to use the car to charge my smartphone.

It’s also worth noting that the US President has, since the Communications Act of 1934, the power to “suspend or amend… the rules and regulations applicable to any or all stations or devices capable of emitting electromagnetic radiations within the jurisdiction of the United States.”  So he and his predecessors have always been able to shut down the airwaves, but one interpretation of the Order is that without an act of Congress he now can shut off access to the Internet. 

Vagueness also is contained in the language regarding how a takeover of commercial assets like the AT&T (News - Alert) and Verizon networks just to name the companies that serve much of the U.S., would be executed.   The Order gives the authority to the Secretary of Homeland Security. It will be interesting if we ever get details on just how the Secretary actually takes charge. 

As noted by Sebastian Anthony on ExtremeTech, there are 8,000 Internet Service Providers (ISPs) in the U.S. How exactly does one get unified command and control? Now that is a plan terrorists would love to get their hands on. That is precisely why on national security grounds we will never see a plan.  

While I resonate with the idea that governmental survivability in a crisis must be a priority, it seems to me, based on all the spectrum they control, that having the authority to possibly eliminate all communications between civilians and their collective “social network” is a bit of overkill. 

I do not pretend to have answers to this conundrum. I choose to think of this as a kind of public service. I am just surprised that civil libertarians have not caused a stir. Maybe there will be a delayed reaction. Stay tuned, if you can. 

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Edited by Rich Steeves
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