By Jessica “Zhanna” Malekos Smith
With thanks to the Thomas M. Cooley Homeland & National Security Law Review
It is often said that trust takes years to build and seconds to destroy – but what about the Internet? While the Internet infrastructure took years to build, would it similarly take seconds to destroy using a ‘kill switch?’ According to Dyn Research, because the United States has a robust Internet economy with over 40 Internet Service Providers (ISPs), it “is likely to be extremely resistant to Internet disconnection.”1 Despite this assessment, since 2010 Congress has considered bills granting the president “the power to order ISPs to disconnect certain websites, stop the flow of information from certain countries or even create an internet service blackout.”2
This article analyzes the congressional history of so-called "Internet kill switch" bills and two domestic cases of a denial-of-access to local Internet connections. The first involves the Federal Bureau of Investigation’s (FBI) actions in disconnecting a suspect’s Internet access because “Internet access isn’t an essential service.”3 The second case examines the California state-run Bay Area Rapid Transit (BART) company’s suspension of cell phone service signals to inhibit protesters’ communications.4
Historical Legislative Overview
In 2010, U.S. Senators Joseph Lieberman (Independent, Connecticut), Susan Collins (Republican, Maine), and Thomas Carper (Democrat, Delaware) proposed the Protecting Cyberspace as a National Asset Act (PCNAA).5 Under the PCNAA, the president would hold broad authority over privately owned computer systems during a national cyber emergency.6 The bill also would have enabled the Department of Homeland Security (DHS) to enact emergency protocols to safeguard the “nation’s critical infrastructure.”7 Critics denounced this provision, however, because it did not specifically identify the DHS’s emergency protocols and types of covered critical infrastructure.8 Opponents alleged the PCNAA impermissibly encroached on their right to free speech online.9 As such, the controversial legislation was dubbed the “Internet Kill Switch Bill” and failed in Congress.
In 2011, Renesys co-founder James Cowie posited that:
“[a] country’s legal framework, not its technical infrastructure, determines whether it is able to shut down its citizens’ access to the internet . . . “somebody has to have the legal authority to go to a company that runs a large part of the internet in the United States and say, ‘Turn off your connection to the outside world.’”11
That same year the PCNAA was revived, and now included a provision that prohibited private-sector service providers from seeking judicial review against the DHS’s emergency protocol regulations.12 The bill alienated many in the technological community by stipulating that the “federal government’s designation of vital Internet or other computer systems shall not be subjected to judicial review.”13 Essentially, the DHS would develop a critical infrastructure list (including but not limited to servers, websites, and routers) that would be subject to the president’s emergency declarations, if each of these three conditions applied:
First, the disruption of the system could cause “severe economic consequences” or worse. Second, that the system “is a component of the national information infrastructure.” Third, that the “national information infrastructure is essential to the reliable operation of the system.”14
If a private-sector company objected to these protocols by asserting a Fifth Amendment due process violation, then its only legal recourse would be an appeal to the Secretary of the DHS, who would offer a binding legal determination.15 For TechFreedom analyst Berin Szoka, this belies core democratic principles because “[b]locking judicial review of this key question essentially says that the rule of law goes out the window if and when a major crisis occurs.”16 Indeed, under this administrative schema, it appeared that the ominous adage silent leges inter arma (“in times of war, the laws fall silent”) would hold true.17
Although the 2011 bill failed, the 2012 Cybersecurity Act (CSA 2012) was then proposed to “alleviate the concerns about the 2010 Act by eliminating any provisions that could be interpreted as giving the president a ‘kill switch.’ The new legislation also define[d] critical infrastructure very narrowly to include only systems that could cause catastrophic damage, if compromised.”18 Despite these changes, CSA 2012 faced strong opposition from the U.S. Chamber of Commerce and civil advocacy groups like the Electronic Frontier Foundation.19,20 In the end, the bill failed to garner enough votes in Congress.21
Denial of Access to Local Internet in the United States
Case Study I: Las Vegas, Nevada
While Congress has not adopted a “kill switch bill,” there have been instances where a state entity attempted to cordon off a user’s access to the global Internet. The first case study involved the FBI, a Malaysian gambling ring, and the opulent Caesars Palace hotel in Las Vegas, Nevada.22
By 2014, the FBI discovered an illegal World Cup gambling ring, estimated at $13 million, operating inside the Caesars Palace villas.23 FBI agents allied with a hotel WiFi24 contractor and devised a plan to disable the hotel-guest Internet connection in the targeted suites.25 Next, FBI agents “posed as repairmen and tricked the butler into letting them into the luxury suite – all without a warrant. The ruse enabled the FBI to gather evidence that led to the arrest of Malaysian gambler Wei Seng ‘Paul’ Phua.”26 As a result, Mr. Phua’s attorneys moved to suppress the incriminating evidence that was seized from warrantless search of Mr. Phua’s suite.27
The government reasoned that the “trickery deployed in Mr. Phua’s case was permissible because Internet access isn’t an essential service.”28 Moreover, they explained that “had the FBI agents manufactured an emergency by shutting off the defendant’s water, heat or electricity,” then such acts of deception would be unconstitutional.29 Assuming that Internet access is a non-essential utility, does that justify the FBI’s actions in shutting down a user’s access? While U.S. District Judge Andrew P. Gordon of the District of Nevada did not directly confront this issue in his ruling, he still ruled in favor of Mr. Phua because the evidence constituted “fruits of an unconstitutional search” in contravention of Fourth Amendment rights.30
Case Study II: San Francisco, California
On August 11, 2011, the California state-run Bay Area Rapid Transit (BART) company “turned off” cell phone service inside select San Francisco stations to inhibit protest activity.31 The following day, BART issued a statement defending its actions: “BART temporarily interrupted service at select BART stations as one of many tactics to ensure the safety of everyone on the platform.”32
For historical context, on July 3, 2011, a deadly shooting involving BART police and a suspect occurred.33 In response, several hundred people assembled at BART stations to protest the shooting.34 Unfortunately, the demonstrations turned violent.35 According to The Washington Post, because protestors were planning to disrupt BART services again on August 11, 2011, which could cause platform overcrowding and unsafe conditions for BART employees and passengers, BART initiated a service outage based on safety concerns: “Organizers… stated that they would use mobile devices to coordinate their disruptive activities and communication about the location and number of BART police.”36
The Electronic Frontier Foundation likened BART’s actions in silencing protestors to those of former Egyptian President Hosni Mubarak, who “ordered the shutdown of cellphone service in Tahrir Square in response to peaceful protests….”37 In fact, the moniker “#MuBARTek” began gaining popularity on the social networking site Twitter.38 Here, the realization that a state-imposed cell phone service outage was just as possible in San Francisco, California, as it was in revolutionary Egypt is chilling.
The case also illustrates that not only can communication networks be restricted by a local state entity to mitigate immediate public safety risks, but also to indiscriminately prevent future protest activity. The First Amendment provides that “Congress shall make no law… abridging the freedom of speech, or… the right of the people peaceably to assemble….”39 Here, BART’s self-imposed outage encroached on the individual right to free speech because it restricted commuters’ ability to “dial 911, or surf the Web for three hours during the shutdown, and protestors were unable to coordinate their actions.”40
Generally, BART has taken the position that it “accommodates expressive activities that are constitutionally protected by the First Amendment to the United States Constitution and the Liberty of Speech Clause of the California Constitution (expressive activity), and has made available certain areas of its property for expressive activity.”41 However, BART’s ability to unilaterally apply a service outage to silence all protest demonstrations – even those that have not yet occurred – is a sobering thought for First Amendment scholars, activists, and citizens.42 Given the high potential for misuse of this power, one wonders how robust the system of checks and balances can operate in a democracy when such forms of speech are readily made silent?
Expanding National Security Communications via Executive Order
On July 6, 2012 President Obama issued Executive Order 13618, the Assignment of National Security and Emergency Preparedness Communications Functions.43 In order to communicate during a national security attack or other emergency, EO 13618 affirms the federal government’s authority to manage federal, state, local, and territorial government and private sector telecommunications systems under such circumstances.44 The list of assigned communication systems includes “landline, wireless, broadcast and cable television, radio, public safety systems, satellite communications, and the Internet.”45
This is not the first instance, however, when a president used an executive order to augment his war powers under the 1934 Communications Act.46 From President John F. Kennedy prescribing “federal telecommunications management functions” in 1962 under EO 10995, to President William J. Clinton regulating “national defense industry resource preparedness” in 1994 under EO 12919, presidents have bolstered their authority to manage National Security/Emergency Preparedness (NS/EP) communications.47 The first section of EO 13618 identifies its central purpose as the following:
The Federal Government must have the ability to communicate at all times and under all circumstances to carry out its most critical and time sensitive missions. Survivable, resilient, enduring, and effective communications, both domestic and international, are essential to enable the executive branch to communicate… Such communications must be possible under all circumstances to ensure national security, effectively manage emergencies, and improve national resilience.48
It is interesting to note that the phrase “under all circumstances” appears twice in the opening statement of EO 13618.49 One possible explanation is that the “2010 National Security Strategy, the primary federal government guidance on national security, reiterates the notion that reliable and secure telecommunications is necessary to effectively manage emergencies, and that the United States must prevent disruptions to critical communications.”50
EO 13618 also disbands the National Communications System and replaces it with “an executive committee to oversee federal NS/EP communications functions, [and] establish[es] a programs office within the [DHS] to assist the executive committee….”51 Critics were particularly disturbed by Section 5.2, which allocates broad oversight authority to the DHS.52 The relevant portion reads:
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 communication networks….53
Opponents felt this provision of EO 13618 gave President Obama a “kill switch” by allowing him “’control over the internet’ beyond the general ability to suspend communications in extreme cases….”54
Given the emergency powers vested in the Commander-in-Chief, could the president restrict American Internet connections during a national security emergency? Recall that under the 1934 Communications Act, the president already possesses the emergency power to “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[.]”55 As such, EO 13618 adds another medium (i.e., the Internet) to the list of NS/EP communication channels subject to the president’s control.56 And although no “kill switch” bill has been formally adopted in Congress, the language of EO 13618, coupled with the case studies discussed herein, indicate that restrictions on U.S. citizens’ access to the global Internet could become an unsettling reality.
About the Author
Jessica “Zhanna” Malekos Smith is a postdoctoral fellow with the Belfer Center's Cyber Security Project at the Harvard Kennedy School. Previously she was a fellow of the Madeleine Korbel Albright Institute for Global Affairs in 2013. Malekos Smith received her B.A. from Wellesley College and J.D. from the University of California, Davis School of Law. She is an M.A. candidate in International Relations and Contemporary War at King's College London, War Studies.
1. Jim Cowie, Could It Happen in Your Country?, Dyn Res. (Nov. 30, 2012), http://research.dyn.com/2012/11/could-it-happen-in-your-countr/.
2. See Betsy Isaacson, How To Get Around The Internet Blackout In Syria—Or A Mass Communications Outage Anywhere, Huffington Post (Nov. 30, 2012, 2:39 PM), http://www.huffingtonpost.com/2012/11/30/internet-blackout-syria_n_2218656.html?1354304364.
3. See Jacob Gershman, Judge: FBI Ruse in Las Vegas Sports Betting Case was Unconstitutional, Wall St. J. (Apr. 20, 2015), http://blogs.wsj.com/law/2015/04/20/judge-fbi-ruse-in-las-vegas-sports-betting-case-was-unconstitutional/.
4. See Melissa Bell, BART San Francisco cut cell services to avert protest, Wash. Post (Aug. 12, 2011), https://www.washingtonpost.com/blogs/blogpost/post/bart-san-francisco-cut-cell-services-to-avert-protest/2011/08/12/gIQAfLCgBJ_blog.html.
5. S. 3480 (111th): Protecting Cyberspace as a National Asset Act of 2010, GOVTRACK.US, https://www.govtrack.us/congress/bills/111/s3480 (last visited June 26, 2016).
6. See John D. Sutter, Could the U.S. shutdown the internet?, CNN (Feb. 3, 2011, 10:23 AM), http://www.cnn.com/2011/TECH/web/02/03/internet.shut.down/.
7. Markus Rauschecker, Protecting U.S. “Cyberspace”: How the Notion of an Internet Kill Switch Sidetracked the National Asset Act, LAW PRAC. TODAY (Mar. 2012), http://www.americanbar.org/content/dam/aba/publications/law_practice_today/protecting-us-cyberspace-how-the-notion-of-an-internet-kill-switch-sidetracked-the-national-asset-act.authcheckdam.pdf.
8. See id.
9. See id.
10. See Isaacson, supra note 2.
11. See Sutter, supra note 6 (quoting Jim Cowie, co-founder of Renesys).
12. See Declan McCullagh, Internet ‘kill switch’ bill will return, CNET Blog (Jan. 24, 2011), http://www.cnet.com/news/internet-kill-switch-bill-will-return/.
13. Id. (quoting S. 3480, 111th Cong. (2010)).
14. Id. (emphasis added).
17. Marcus Tullius Cicero, GoodReads, http://www.goodreads.com/quotes/49233-in-times-of-war-the-law-falls-silent-silent-enim (last visited June 26, 2016); see also Inter Arma Enim Silent Leges Law & Legal Definition, USLegal, http://definitions.uslegal.com/i/inter-arma-enim-silent-leges/ (last visited June 26, 2016).
18. See Rauschecker, supra note 7.
19. About the Electronic Frontier Foundation, EFF, https://www.eff.org/about (last visited June 26, 2016) (“The Electronic Frontier Foundation is the leading nonprofit organization defending civil liberties in the digital world. Founded in 1990, EFF champions user privacy, free expression, and innovation through impact litigation, policy analysis, grassroots activism, and technology development.”); See also Rauschecker, supra note 7.
20. See Rauschecker, supra note 7.
21. See id.
22. See Gershman, supra note 3.
23. See id.
24. Wi-Fi, TechTerms, http://techterms.com/definition/wi-fi (last visited June 26, 2016) (“Wi-Fi is a wireless networking technology that allows computers and other devices to communicate over a wireless signal. It describes network components that are based on one of the 802.11 standards developed by the IEEE and adopted by the Wi-Fi Alliance.”).
25. See Gershman, supra note 3.
27. See id.
30. See id.
31. See Bell, supra note 4.
33. See id.
34. See id.
35. See id.
37. Daniel Ionescu, FCC Investigates BART over Cellphone Shutdown, PCWorld (Aug 16, 2011, 8:00 AM) http://www.pcworld.com/article/238160/FCC_Investigates_BART_Over_Cellphone_Shutdown.html.
38. Bell, supra note 4.
39. U.S. Const. amend. I.
40. Ionescu, supra note 37.
41. Bell, supra note 4.
42. Eva Galperin, BART Pulls a Mubarak in San Francisco, Elec. Frontier Found. (Aug. 12, 2011), https://www.eff.org/deeplinks/2011/08/bart-pulls-mubarak-san-francisco (“[O]nce BART made the service available, cutting it off in order to prevent the organization of a protest constitutes a prior restraint on the free speech rights of every person in the station, whether they’re a protester or a commuter. Freedom of expression is a fundamental human right. Censorship is not okay in Tahrir Square or Trafalgar Square, and it’s still not okay in Powell Street Station.”).
43. See Dara Kerr, Obama signs order outlining emergency Internet control, CNET Blog (July 10, 2012), http://www.cnet.com/news/obama-signs-order-outlining-emergency-internet-control/.
44. See Shawn Reese, Cong. Research Serv., R42740, National Security and Emergency Preparedness Communications: A Summary of Executive Order 13618 2 (2012).
45. Id. (emphasis added).
46. See id.
47. See id.
48. See Exec. Order No. 13618, 77 Fed. Reg. 40,779 (July 6, 2012), https://www.gpo.gov/fdsys/pkg/FR-2012-07-11/pdf/2012-17022.pdf (emphasis added) [hereinafter E.O. 13618].
49. See id. § 1.
50. See Reese, supra note 44, at 1.
52. See Kerr, supra note 43.
53. E.O. 13618, supra note 48 (emphasis added).
54. See Adi Robertson, Obama clarifies plan to keep the internet running during emergencies in executive order, The Verge (July 10, 2012), http://www.theverge.com/2012/7/10/3149831/obama-national-security-emergency-preparedness-internet-order.
55. See 47 U.S.C.A. § 606(d) (West 1934) (emphasis added).
56. See Reese, supra note 44, at 2.
Photo credits (in order of appearance): Make:, Ars Technica, Franco Folini/Wikimedia Commons, FreedomWorks, d-infinity