Internet 'Kill Switch' Act Back On Senate's Agenda

It's a new legislative year, and once again the topic of an executive branch-controlled “Internet kill switch” has reared its head in Washington, on the tech blogs and in the national media.

The Protecting Cyberspace as a National Asset Act of 2010, also known as S. 3480, was a bill introduced in the Senate by Senators Joe Lieberman (Independent Democrat, CT), Susan Collins (R-ME) and Tom Carper (D-DE) back in June of 2010. The purpose of the bill, as stated, is to “increase security in cyberspace and prevent attacks which could disable infrastructure such as telecommunications or disrupt the nation's economy.” In addition to giving the President an option to essentially shut off private Internet networks, the bill would create an Office of Cyberspace Policy and a National Center for Cybersecurity and Communications.

The bill would allow the President to enact “emergency measures” in the case of a large-scale cyber attack. In its original form, the bill granted the President authority to shut down part of the Internet for an indefinite time. A later version of the bill reduced that time to 120 days, unless Congress approves an extension.

Though the bill has been widely criticized as a kind of totalitarian government control of the Internet, its sponsors have sought to calm Internet companies and the general public by assuring them that it is a worst-case scenario option to help safeguard national security in the event of a large-scale take-over of critical networks by hackers, and that it won't apply to the entire Internet, as its critics charge.

“We're not trying to mandate any requirements for the entire Internet, the entire Internet backbone,” said Brandon Milhorn, Republican staff director and counsel for the committee overseeing the bill.

For his part, Senator Lieberman has stated that, “For all of its 'user-friendly' allure, the Internet can also be a dangerous place with electronic pipelines that run directly into everything from our personal bank accounts to key infrastructure to government and industrial secrets,” he said.

A relatively new part of the bill that exempts the legislation from judicial review is once again firing up the bill's critics. According to CBS News, the revised version of the bill, introduced in December, includes new language saying that the federal government's designation of vital Internet or other computer systems “shall not be subject to judicial review.” Another addition expanded the definition of critical infrastructure to include “providers of information technology,” and a third authorized the submission of “classified” reports on security vulnerabilities.

A coalition of Internet companies is not remaining quiet about their concerns about both the bill and its new language. “Judicial review is our main concern,” said Steve DelBianco, director of the NetChoice coalition, whose members includes AOL, eBay, Oracle (News - Alert), Verisign, NewsCorp and Yahoo. “A designation of critical information infrastructure brings with it huge obligations for upgrades and compliance.”

DelBianco pointed out that in a case where a company has a “good-faith disagreement” with the government's ruling and wants to seek court review, it would be unable to do so. “The country we're seeking to protect is a country that respects the right of any individual to have their day in court,” he said. “Yet this bill would deny that day in court to the owner of infrastructure.”

According to CBS, other industry representatives say it's not clear that lawyers and policy analysts who will make up the new Office of Cyberspace Policy and a National Center for Cybersecurity and Communications will have the expertise to improve the security of servers and networks operated by companies like AT&T (News - Alert), Verizon, Microsoft, and Google.

Lieberman and Collins have pointed out that the executive branch already has authority to shut down private networks in the event of a national emergency. The 1934 law (PDF) that created the Federal Communications Commission (FCC (News - Alert)) contains language stating that “if a state of public peril or disaster or other national emergency” exists, the President may “authorize the use or control of any...station or device.”

The full Senate has yet to act on the bill.

Want to learn more about how federal regulations are shaping and re-defining communications and information technology? Then be sure to attend the Regulatory 2.0 Workshop, collocated with TMC’s (News - Alert) ITEXPO East, taking place Feb 2-4, 2011, in Miami. Federal Communications Commission Chairman Julius Genachowski (News - Alert) has pursued the singular goal of ubiquitous broadband access to an open Internet. While some progress has been made, the most difficult decisions are ahead. What's the Commission to do? This program will examine the important issues facing the FCC including net neutrality, inter-carrier compensation and universal service reform, new CALEA legislation, next generation 911, additional spectrum for wireless broadband and the evolving role of state regulation. To register, click here.