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

Abstract

A key area of debate over cybersecurity policy concerns whether the President should have 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.” The current iteration of a comprehensive cybersecurity reform bill, the Cybersecurity Act of 2012, opts for a soft public-private contingency plan model instead of a kill switch. But the kill switch may yet live. Sponsors of the present legislation have argued that Section 606 of the Communications Act of 1934 already gives the U.S. President plenary powers over the Internet in times of emergency or war. If this claim is correct, it should be particularly troubling to network neutrality advocates who have argued for expansive FCC jurisdiction over the Internet, since the Executive powers under Section 606 are tied to the FCC’s authority over communications policy. This paper evaluates the language, history, and application of Section 606, and argues that, instead of implicitly relying on the vague and antiquated provisions of a statute crafted long before the Internet was born, cybersecurity reform should include explicit executive emergency powers with clear and appropriate limitations.

Keywords: cybersecurity, internet, cyberlaw, internet law, kill switch, communications, communications act, telecommunications act