Campaign 2016

The Powers of Trump and the Internet "Kill Switch"

By Paul Rosenzweig
Thursday, June 2, 2016, 11:07 AM

Ben has begun a series of posts on the prospect of a Trump Presidency and the power he might wield -- and Carrie has written a short follow up.  It seems apt, therefore, to at least acknowledge one prediction that I have made in the past that might prove in retrospect to have been too optimistic.

Four years ago, I wrote this blog post on the idea of an internet kill switch – that is the ability of the President to act in a cyber emergency.  In general I was skeptical of the concern that had been expressed by some civil libertarians who feared the possibility that a President could use existing legal authority to demand significant control over the telecommunications spectrum, including the network, for pernicious, political purposes.  For one thing, the legal provisions were ambiguous and might not support such authority (if you are curious, you can go back and look at the analysis of Section 706 of the Communications Act of 1934).

But I also expressed confidence that no President would act tyrannically.  I wrote: “any President of either party should not be presumed to exercise powers granted in a dictatorial way.”  So now, the question is -- can we extend the same presumption to a putative President Trump? 

Contemplate that question as you consider the provision of law that says: "the President, if he deems it necessary in the interest of national  security or defense, may suspend or amend, for such time as he may see  fit, the rules and regulations applicable to any or all stations or  devices capable of emitting electromagnetic radiations within the jurisdiction of the United States."

This is typical of many laws in the US -- they often allow for Presidential waivers.  That makes sense if, by and large, you trust their judgment.  For myself, I am no longer as confident as I was in my anti-dictatorial assumption.