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Steve DelBianco, director of the Net Choice coalition, which includes eBay, Oracle, Verisign, and Yahoo as members, was concerned that a lack of judicial review over what he characterized as “good faith disagreements” between the government and Internet service providers was a cause for alarm. “The country we’re seeking to protect is a country that respects the right of any individual to have their day in court,” said DelBianco. “Yet this bill would deny that day in court to the owner of infrastructure.” Berin Szoka, an analyst at the free-market TechFreedom think tank, was even more direct. “Blocking judicial review of this key question essentially says that the rule of law goes out the window if and when a major crisis occurs.”
Yet a spokesman for the Senate Homeland Security Committee claimed such a reading of the bill was false. “The Committee’s original bill, as introduced, had no review of any sort. After discussions with stakeholders, the Senator added a provision for agency review of one section of the bill only–and that is on the designation of what constitutes critical infrastructure. So, there is more review in the final bill than there was originally,” she added.
What constitutes “critical infrastructure?” According to the HSGA website, critical infrastructure is defined as “specific systems or assets whose disruption would cause a national or regional catastrophe.” The definition of “national catastrophe?” “Mass casualties with an extraordinary number of fatalities; severe economic consequences; mass evacuations of prolonged duration; or severe degradation of national security capabilities, including intelligence and defense functions.”
The bill expressly prohibits DHS Secretary Napolitano from defining critical infrastructure “based solely on activities protected by the first amendment of the United States Constitution,” adding that such a prohibition also prevents “the identification of specific websites for censorship.”
Perhaps, but the idea of making Ms. Napolitano the sole arbiter of anything is extraordinarily troubling. From her contention that the “system worked” when a fellow passenger foiled the attempted destruction of a jetliner by a Muslim terrorist on Christmas of 2009, to her focus on “right-wing extremism,” including “groups opposed to abortion and immigration” as expressed in a 2009 DHS intelligence assessment, Ms. Napolitano has demonstrated a remarkable lack of level-headedness. Even more importantly, the idea that an unelected government official can exercise what amounts to executive privilege superseding judicial review should itself be subject to judicial review.
How do you shut down the Internet in an entire country? “People have talked about a ‘kill switch,’ but that is not realistic,” said Jim Cowie, founder and chief technology officer of Renesys Corp., a company that analyzes how the Internet is performing worldwide. “What is most likely is that somebody in the government gives a phone call to a small number of people and says, ‘Turn it off.’ And then one engineer at each service provider logs into the equipment and changes the configuration of how traffic should flow.” According to Cowie, larger Internet service providers who sell service to smaller providers have access codes which allow for sending and receiving transmissions (traffic flow). Block the codes and transmission stops, as it did in Egypt, where by Friday evening, Renesys reported, “93% (of the ISPs) were offline.”
Cowie claims a similar shutdown would be next to impossible in the United States because, unlike Egypt, our system is far larger and more diversified. “You’d have to make far too many phone calls, and most of those people would ignore you,” he explained.
Given the Obama administration’s successful seizures of banks, insurance and car companies and the student loan program, along with its intentions to bypass Congress via executive orders with respect to the Environmental Protection Agency, the idea that most people would “ignore” a fiat issued by this government during an ostensible national emergency is hardly reassuring. Nor can Americans expect a mainstream media largely supportive of this administration to question what–exactly–constitutes a national emergency. Does America need protection from a coordinated cyber attack? Most definitely. But shutting down vast swathes of American communications absent a court order has a very “Egyptian-like” quality to it. Aren’t we a freer nation than Egypt?
Most Americans probably think so. The Obama administration, demonstrably comfortable with a “never let a crisis go to waste mentality”? Your guess is as good as mine.
Arnold Ahlert is a contributing columnist to the politically conservative website, JewishWorldReview.com.
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