We get a lot of e-mail about executive orders these days, much of it overly hysterical reaction to routine updates on long-standing EOs. Executive orders are legitimate when they deal directly with implementation of Article II powers or the enforcement of laws passed by Congress, as long as they don’t arrogate authority not granted by the law or the Constitution. Obviously, there is plenty of room for abuse in that system, but under normal circumstances an EO is simply an instrument of delineating executive-branch policy by having the President himself sign off on it.
However, an EO signed last Friday generated enough concern that it caught the attention of the media. Titled “Assignment of National Security and Emergency Preparedness Communications Functions,” it appears to grant DHS some fairly wide-ranging responsibility to ensure that private networks and broadcast facilities operate properly in the case of national emergency. This is the section that has some worried:
Sec. 5.2. The Secretary of Homeland Security shall: (a) oversee the development, testing, implementation, and sustainment of NS/EP communications, including: communications that support Continuity of Government; Federal, State, local, territorial, and tribal emergency preparedness and response communications; non-military executive branch communications systems; critical infrastructure protection networks; and non-military communications networks, particularly with respect to prioritization and restoration;
(b) incorporate, integrate, and ensure interoperability and the necessary combination of hardness, redundancy, mobility, connectivity, interoperability, restorability, and security to obtain, to the maximum extent practicable, the survivability of NS/EP communications defined in section 5.2(a) of this order under all circumstances, including conditions of crisis or emergency;
(c) provide to the Executive Committee the technical support necessary to develop and maintain plans adequate to provide for the security and protection of NS/EP communications;
(d) receive, integrate, and disseminate NS/EP communications information to the Federal Government and State, local, territorial, and tribal governments, as appropriate, to establish situational awareness, priority setting recommendations, and a common operating picture for NS/EP communications information;
(e) satisfy priority communications requirements through the use of commercial, Government, and privately owned communications resources, when appropriate;
(f) maintain a joint industry-Government center that is capable of assisting in the initiation, coordination, restoration, and reconstitution of NS/EP communications services or facilities under all conditions of emerging threats, crisis, or emergency;
(g) serve as the Federal lead for the prioritized restoration of communications infrastructure and coordinate the prioritization and restoration of communications, including resolution of any conflicts in or among priorities, in coordination with the Secretary of Defense when activities referenced in section 5.1(a) of this order are impacted, consistent with the National Response Framework. If conflicts in or among priorities cannot be resolved between the Departments of Defense and Homeland Security, they shall be referred for resolution in accordance with section 2.1 of this order; and
(h) within 60 days of the date of this order, in consultation with the Executive Committee where appropriate, develop and submit to the President, through the Assistant to the President for Homeland Security and Counterterrorism, a detailed plan that describes the Department of Homeland Security’s organization and management structure for its NS/EP communications functions, including the Government Emergency Telecommunications Service, Wireless Priority Service, Telecommunications Service Priority program, Next Generation Network Priority program, the Executive Committee JPO, and relevant supporting entities.
CNet raised a red flag on it last night, declaring that the EO would give the executive branch control of the Internet when it so chooses:
President Barack Obama signed an executive order last week that could give the U.S. government control over the Internet. …
According to The Verge, critics of the order are concerned with Section 5.2, which is a lengthy part outlining how telecommunications and the Internet are controlled. It states that the Secretary of Homeland Security will “oversee the development, testing, implementation, and sustainment” of national security and emergency preparedness measures on all systems, including private “non-military communications networks.” According to The Verge, critics say this gives Obama the on/off switch to the Web.
CNet also notes that the authority on which this EO may rest didn’t get extended this year:
Presidential powers over the Internet and telecommunications were laid out in a U.S. Senate bill in 2009, which proposed handing the White House the power to disconnect private-sector computers from the Internet. But that legislation was not included in the Cybersecurity Act of 2012 earlier this year.
The Daily Caller joined in this morning:
Should disaster strike the U.S., the secretary of Homeland Security will be in charge of re-establishing and prioritizing communications to ensure the continuation of the federal government, according to a new executive order from President Barack Obama.
The executive order, signed on Friday, once again expands the powers of the Department of Homeland Security — this time to include the handling of communications during a national security event or natural disaster. The order also allows for DHS to re-establish communications “through the use of commercial, government, and privately owned communications resources, when appropriate.”
The secretary of homeland security, in coordination with the secretary of defense, would also “serve as the federal lead for the prioritized restoration of communications infrastructure and coordinate the prioritization and restoration of communications, including resolution of any conflicts in or among priorities.”
My natural skepticism, honed from years of hysterical overreaction to routine EOs, still makes me somewhat unwilling to jump into a full freakout over this issue. The text as highlighted by CNet and the DC appears to deal with DHS’ role in re-establishing services once they’ve been interrupted in a national emergency, and their authority to prioritize the resources necessary to repair them. That too could be abused, but at least on the surface it sounds like a reasonable and rational idea. I don’t see any specific language in the EO that gives DHS or anyone else the authority to “control the Internet” in the manner that many rightly feared with the “on/off switch” language in the 2009 bill.
This took a little more time than usual to research, only because older EOs aren’t very well indexed. However, this appears to be yet another update of an existing EO, this time EO 12472 issued by Ronald Reagan in 1984. The language has been updated to include the Internet, which quite obviously wasn’t an issue in 1984, and transfers authority granted in 1984 to the Secretary of Defense to both the SecDef and Secretary of Homeland Security. Reagan’s EO even includes private communication resources within the scope of the EO, in sections 2 (b)(1)a, 2 (c)(1), 3, and 3(b)(4). Section 2 (b)(1)a is most relevant to the latest EO, emphasis mine:
(1) The National Security Council shall advise and assist the President in:
a. Coordinating the development of policy, plans, programs and standards for the mobilization and use of the Nation’s commercial, government, and privately owned telecommunications resources, in order to meet national security or emergency preparedness requirements;
I have an obvious interest in ensuring that any administration — whether it be Republican, Democratic, or Kanamit — cannot just pull the plug on private communications systems to silence dissent and opposition. This particular EO doesn’t really provide any new authority to do so, nor does it provide the kind of on/off-switch that rightly concerned civil libertarians in 2009. It’s a good idea to maintain vigilance, as long as it’s rational, but also to understand the EO system that already exists — which is in need of a lot more sunlight, regardless of who’s President at any one time.