Can Democracy Endure Where the Cyber Things Are?

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During a national crisis, executive action to reconfigure U.S. network data flows to the global Internet may be lawful.

Imagine if a U.S. president determined that an insurrection or a threat of war existed. Would President Lincoln’s actions in blockading Confederate ports enable a modern president to suppress insurrection by “blockading” portions of U.S. Internet connections? Assuming the executive determined a denial-of-access necessary for national security purposes — perhaps to prevent domestic adversaries from relaying communications to fellow in-state conspirators or to impede their ability to communicate with an affiliated foreign adversary — is such government action lawful?

Mothering or Smothering Internet Connections?

States that cordon off their citizenry’s access to the Internet, as observed by University of California, Davis law professor Anupam Chander, demonstrate that they “fear the Internet more than they rely upon it.” Within the past decade, the governments of Nepal (2005), Burma (2007), Egypt (2011), Libya (2011) and Syria (2012) imposed Internet service “blackouts” to quell insurrection. In 2015, Russia’s Ministry of Communications and Internet regulator, Roskomnadzor, tested a traffic control system “to find out whether it c[ould] cut the country off from the World Wide Web.”

And while a state-imposed denial-of-access may appear as an objective only of totalitarian regimes, the world, in December 2015, witnessed U.S. Republican presidential candidates debate closing portions of the Internet to counter ISIS. But what about state-imposed restrictions on local Internet connections? This article examines how executive power translates in cyberspace and assesses the president’s ability to reconfigure U.S. network data flows to the global Internet during a national crisis.

Translating Executive Power in Cyberspace

Under emergency conditions, the president can unilaterally respond to and repel sudden attacks on the United States, its territories, possessions, or armed forces. Pursuant to 50 U.S.C. § 1541 the president can “introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” The president can also commit troops into battle or into areas where imminent hostilities are likely for sixty days without obtaining either a congressional declaration of war or mandate; however, the president can only extend this war powers privilege for thirty days for a maximum total of ninety days without congressional approval.

With regard to directing telecommunications, under the 1934 Communications Act, the executive may “suspend or amend the rules and regulations applicable to any or all facilities or stations for wire communication within the jurisdiction of the United States as prescribed by the Commission,” subject to temporal limitations. For wireless communications, Executive Order (EO) 13618 adds the Internet as a telecommunication system subject to the executive’s direction in a crisis. Based on these provisions, if a group of internal, domestic-based aggressors, as opposed to an external foreign non-state actor, launched a cyber attack against the United States’ critical infrastructure, how may the government respond?

Beware the Cyber Enemy Within