Integrity Legal

Posts Tagged ‘Protecting Cyberspace as a National Asset Act of 2010’

1st February 2011

In recent days this blogger has been reading a great deal about both the proposed extension of the USA PATRIOT ACT and the proposed “Internet Kill Switch” which would allow Federal authorities to unilaterally shut down the internet services in much the same way that Egyptian authorities have restricted the access to internet services in Egypt. The first issue is the extension of the Patriot Act. Notwithstanding what appears to be broad popular support calling for the repeal or “sunsetting” of the Patriot Act, lawmakers on Capitol Hill continue to push for a further extension of this questionably Constitutional piece of legislation. To quote directly from a piece on the RawStory.com website:

Senate Judiciary Committee Chairman Patrick Leahy (D-VT) introduced legislation to the Senate Wednesday that would extend expiring provisions of the controversial PATRIOT Act.

“Congress now faces a deadline to take action on the expiring provisions of the USA PATRIOT Act,” Sen. Leahy said in a statement. “The USA PATRIOT Act Sunset Extension Act of 2011 will preserve law enforcement and intelligence techniques that are set to expire on February 28, 2011, and extend them to December 2013.”

The legislation, titled “The USA PATRIOT Act Sunset Extension Act of 2011,” would extend the roving wiretap provisions, the “lone wolf” measure and the “library records” provision. The provisions allow authorities to conduct surveillance without identifying the person or location to be wiretapped, permits surveillance of “non-US” persons who are not affiliated with a terrorist group, and lets the government gain access to “any tangible thing” during investigations, respectively.

Roving wire taps, library records surveillance, access to “any tangible thing” during an investigation, the question must be posed: is this really what is best for the United States of America? The USA was founded upon principles which run completely counter to all of these notions. Furthermore, vague definitions in bills such as the Patriot Act (eg. “any tangible thing”) makes this blogger think back to a time in the United Kingdom when blank warrants were utilized as a circumvention by authorities to search people without probable cause. Again, those who follow United States politics and policy with any kind of regularity must have noticed what appears to be a movement toward a more authoritarian regime in Washington D.C. Why do the American people need to continue to be placed under a regime of such heavy surveillance and scrutiny with no definitive end? Yes, there are threats in the world today, but it has always been America’s ability to remain free in spite of war, terrorism, and general unrest that, if anything, once made the American people “exceptional”. In much the same way that the British pride their “stiff upper lip” so too did Americans once prize their self-reliance and liberty. Why are these principles being undermined by the very lawmakers who have sworn to protect and defend the US Constitution?

Meanwhile, as the Patriot Act extension awaits Congressional approval, it appears that a bill may be proposed which would give Federal authorities the ability to unilaterally shut down the internet and thereby deprive the citizenry of free access to open source information the likes of which can sometimes only be found online. To quote directly from a recent piece on the website DailyMail.co.uk:

While the Egyptian government has drawn international criticism for shutting down internet and mobile phone access during civil unrest, it might alarm many Americans to learn that Barack Obama may soon have the same powers.

Lawmakers are set to debate a controversial new plan to give the President the power to shut down the Internet in case of a cyber emergency.

The proposal is certain to meet opposition, but Senator Susan Collins, the co-sponsor of the bill, insisted today that the legislation would not be used for censorship.

This bill, referred to currently as the Protecting Cyberspace as a National Asset Act of 2010 has yet to be voted upon by the American legislature. Thus far, this blogger has yet to find any concrete definition of what would constitute a “cyber emergency”. According to OpenCongress.org the bill:

Creates the Office of Cyberspace Policy and National Center for Cybersecurity and Communications to set standards and coordinate cybersecurity efforts within the government. Gives the NCCC broad powers over “critical infrastructure” in the case of a “national cyber emergency” (as declared by the President).

There would seem to be a great deal of controversy surrounding this bill which may be most concisely summed up by quoting from an excerpt in Wikipedia.org‘s entry on the subject:

Senator Lieberman [The Senator who proposed the legislation] has been criticized for giving the President the power to use a “kill switch” which would shut off the Internet. He has called these accusations “total misinformation” and said that “the government should never take over the Internet”.[3] Lieberman further inflamed skeptics when he cited China’s similar policy in a backfired attempt to show the policy’s normalcy.[4] However, the bill would allow the President to enact “emergency measures” in the case of a large scale cyber attack.[2] The original bill granted the US President the authority to shut down part of the internet indefinitely, but in a later amendment the maximum time for which the President could control the network was reduced to 120 days. After this period, the networks will have to be brought up, unless Congress approves an extension.

The question must be posed: is the controversy surrounding this bill legitimate or simply “misinformation”? Clearly under such a scheme, as stated above, the President would have some sort of “Emergency Powers” over the internet pursuant to the language of this bill. What is most ominous to this blogger is the notion that abridgment of freedom (both online and in the real world) is okay so long as it only occurs in 120 day spurts. Furthermore, at first blush, the provisions regarding restriction and Congressional extension would seem to mitigate the rather broad powers being granted to the President and the Federal government, but, in this blogger’s opinion, these measures are chimerical as can be seen by the Congressional actions which have consistently resulted in extension of the Patriot Act (a bill which also had sunset provisions, but provided Congress with the ability to make extensions). Does the American Constitution and Bill of Rights not clearly state that those enumerated powers not expressly granted to the Federal government are to remain with the States and the People respectively? If so, then why has the Federal government continued to usurp, or in the case of the “kill switch,” attempted to usurp; State and individual rights to liberty and the free access to information? In fact, it would seem that this bill is expressly intended to obstruct the free flow of information during a time of crisis, which some would argue, is the exact time when people would need such information the most. Perhaps the reasoning behind this bill cannot be fully discussed within the confines of this blog post, but readers can still ponder these questions while researching these issues.

Finally, the most noticeable aspect of both of these seemingly unrelated pieces of legislation is the use of the idea “Congressional Extensions” to act as a salve to those initially opposed to passage of such legislation. The notion that dramatic abridgment of liberty is permissible so long as Congress has to continually re-adjudicate the extension of such abridgment is simply ridiculous. In fact, such a statutory scheme would seem to simply make Congress a periodic accomplice to the abrogation of American State Sovereignty and individual personal freedoms. The Patriot Act has continued to be extended long after the date upon which it was originally supposed to expire and these extensions were permitted by a Democratic Congress. Bear in mind that a Republican President and Congress promulgated the PATRIOT ACT in the first place. Clearly, the notions of personal liberty and freedom of access to information are issues which transcend political party. As Congress continues to pass more questionably Constitutional legislation it is the job of the American people make informed decisions regarding whom they elect to office and it may also be incumbent upon Americans to understand their rights and understand the myriad ways in which such rights can be infringed by the Federal authorities.

For related information please see: 5 Worst Laws in American History.

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