Does the Communications Act of 1934 Contain a Hidden Internet Kill Switch?

By Opderbeck, David W. | Federal Communications Law Journal, January 2013 | Go to article overview

Does the Communications Act of 1934 Contain a Hidden Internet Kill Switch?


Opderbeck, David W., Federal Communications Law Journal


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.

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