We’ve written about this before but the new and “improved” version of the bill’s just been leaked by Jay Rockefeller’s office. Remember the Bush years, when the Democrats ferociously opposed executive power? Good times.
If you think they’ve changed now, wait and see what happens if/when the GOP takes back Congress. Article II fee-vah!
A Senate source familiar with the bill compared the president’s power to take control of portions of the Internet to what President Bush did when grounding all aircraft on Sept. 11, 2001. The source said that one primary concern was the electrical grid, and what would happen if it were attacked from a broadband connection…
Probably the most controversial language begins in Section 201, which permits the president to “direct the national response to the cyber threat” if necessary for “the national defense and security.” The White House is supposed to engage in “periodic mapping” of private networks deemed to be critical, and those companies “shall share” requested information with the federal government. (“Cyber” is defined as anything having to do with the Internet, telecommunications, computers, or computer networks.)
“The language has changed but it doesn’t contain any real additional limits,” EFF’s Tien says. “It simply switches the more direct and obvious language they had originally to the more ambiguous (version)…The designation of what is a critical infrastructure system or network as far as I can tell has no specific process. There’s no provision for any administrative process or review. That’s where the problems seem to start. And then you have the amorphous powers that go along with it.”
Translation: If your company is deemed “critical,” a new set of regulations kick in involving who you can hire, what information you must disclose, and when the government would exercise control over your computers or network.
Here’s the relevant section of the statute. The problem’s not that it explicitly grants Obama all sorts of detailed powers; it’s that it’s not detailed at all, leaving the limits of executive authority in an emergency perhaps only to The One’s imagination. Yet, that said, I’m still troubled by this Times piece from a few days ago about the Conficker virus and how America’s techie brain trust just can’t seem to stop it, even when they put their eggheads together. If it’s some sort of trojan horse, it’s not unthinkable that whoever’s directing it could suddenly take over a huge number of systems, requiring a very rapid quarantine. And even if it isn’t, a future virus might be. The Rockefeller bill isn’t (necessarily) a bogus power grab, in other words, it’s a response to a genuine threat that maybe reaches too far. How do you limit the president’s emergency powers so that he can’t abuse them while keeping his hands untied to fight a new kind of warfare if need be? Any thoughts, techies?