THE CYBERSECURITY AND INTERNET FREEDOM ACT
An Enemy of Liberty
In February of this year Senators Joe Lieberman, Susan Collins, and Tom Carper introduced the Cybsersecurity and Internet Freedom Act (CIFA). CIFA permits the federal government to limit internet traffic when the President declares a national cyber emergency. The measure also calls for the Department of Homeland Security to create a list of the systems and resources that are deemed “critical infrastructure” that would be directed in unspecified ways by the government in the event of a cyber emergency. Largely free of government control, the internet has rapidly become the greatest interactive medium for free speech and press that the world has ever known. By sponsoring this bill, Lieberman, Collins and Carper seek to give the President control over that medium at his discretion during times of an actual or perceived cyber emergency. The First Amendment forbids that action. CIFA is patently unconstitutional. We should strenuously oppose the bill.
Under CIFA, if the President declares a national cyber emergency, he may limit public access to the internet for thirty day periods renewable thereafter for three consecutive thirty day periods. That 120 period, when broken by a matter of days, could be recommenced again. By controlling access, the President may alter what is said and who may speak. Thus, the bill enables the President to exercise the controls that can deny internet access to unwanted speakers based on their unwanted content.
If CIFA had an analog counterpart, it would be a statute to permit the President to limit during a perceived or actual emergency who may write for, and the number of pages that can appear in, newspapers nationwide. There is no emergency too great to justify the exercise of that unconstitutional power whereby government replaces private editorial freedom, whether that replacement lasts for a minute, an hour, a week, a month, or a year. The media is liberated from government restraint by our Constitution. So liberated, it can perform an essential function of critically examining government men and measures insulated from their retaliation by the First Amendment barrier. When operating properly, the media is an investigatory body that ferrets out government corruption, exposes abuses of power, reveals hidden agendas, and informs the electorate so that we may demand that government account for its actions and throw out of power those who disserve our interests.
CIFA is Big Brother’s best friend and those who favor it do so because they share none of the Founding Fathers’ antipathy for and fear of government, corruption and abuse of power. Undoubtedly the internet, like all media and private property in general, can be illegally converted to serve evil ends, but the proper role of government is to investigate and prosecute those who commit the unlawful conversion, not use the fact of the illegality as a justification for an even greater conversion—the transference of control over the internet to the executive branch of the government.
There is no authority given Congress or the President in the Constitution to suspend freedom of speech and press in the event of a national emergency. Whatever may be said about the need to protect national security, that need does not justify any exercise of a general power over the media. Indeed, it does not rightfully extend beyond enjoining the publication of secret facts that could give a known enemy intent on committing murder a precise roadmap to achieve that end. The intervention is thus limited to a circumstance of immediate, identifiable threat to life and extends for only so long as is absolutely necessary to permit the one threatened to get out of harm’s way.
CIFA exceeds in its grant of authoritarian power the most formidable power to arrest civil liberties that exists in the Constitution. Article I, Section 9, Clause 2 of the Constitution enables the Congress to exercise a power to suspend the writ of habeas corpus “when in Cases of Rebellion or Invasion the public Safety may require it.” In the theater of war or insurrection as hostilities rage in open combat, those arrested may be detained without a right to appear promptly before a judge for sentencing and a speedy trial if Congress constitutionally suspends the writ, but the suspension is only valid in the combat zone and only during combat.
There is no constitutional authority for the President to impose unilaterally a limit on access to any medium of mass communication, including the internet. CIFA is thus antithetical to the core values of the First Amendment, which depend on an unencumbered media to expose government abuse and corruption. It is not at all inconceivable to think that a President, armed with CIFA, could transform any threat of terrorism, civil unrest, or war into a justification for limiting access to the internet. Imagine what a politically embattled President might be tempted to do to limit his adversaries access to the internet. On the pretext of a real or imaginary threat to national security, the President could rely on CIFA to limit access in ways that stifled criticism of his actions, affording time to use the bully pulpit and rally public support before contrary views reach the public.
If CIFA becomes law, the mere threat of the exercise by the President of the power to declare a national cyber emergency would cast a pall of self-censorship over the internet, causing internet service providers to put limits on internet access to fend off prospects that the President might commandeer the providers’ infrastructure to limit internet traffic.
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CIFA is a means for government to control internet traffic, and thereby effect changes in the content of, the internet. It is a grave and intolerable threat to liberty. It offends the very purpose of the First Amendment, which is to disarm the federal government of any power whatsoever over speech and press. At a time when so many actions by this Administration and its friends in Congress threaten the survival of even the last vestiges of constitutional government in America, we should respond resoundingly against latest threat by insisting that our elected representatives oppose the measure.
© 2011 Jonathan W. Emord - All Rights Reserved