Two members of Congress have introduced legislation that would prevent the president from taking action to restrict the U.S. public’s access to the internet, the Preventing Unwarranted Communications Shutdowns Act (PUCSA).
In an announcement, Representatives Anna Eshoo, a California Democrat, and Virginia Republican Morgan Griffith wrote that while they are aware the internet cannot be “shut down” due to its decentralized nature, the president can nonetheless take action to effectively cut off most Americans from the internet under §706(d) of the Communications Act of 1934. That act authorizes the president to override all rules and regulations pertaining to facilities or stations involved in wire or radio communications, cause their closure and “removal therefrom of its apparatus and equipment,” or simply take them over.
As the Brookings Institute noted, the president simply needs to declare a national emergency to invoke that authority. While this may be particularly disconcerting considering made-up national emergencies are something the Trump administration is very fond of declaring—and has repeatedly indicated it may go to extreme lengths to retain power regardless of the outcome of the 2020 elections—any future White House could abuse this authority.
“... Internet shutdowns are an extraordinary infringement of individual rights,” Eshoo wrote in the announcement. “Unchecked executive powers and the emergency authorities of the President under the Communications Act need to be revisited. May there never be in a situation where these authorities are needed, but if there is, the representatives of the people should decide the scope and extent of any shutdown, not any single individual.”
The reps wrote PUCSA would restrict the president’s §706(d) powers only to situations where they are “necessary to protect against an imminent and specific threat to human life or national security if such action is narrowly tailored and is the least restrictive means for the purpose.” It then requires the president to notify leaders of Congress, senior executive branch officials, and the Federal Communications Commission “before or not later than 12 hours after taking any action authorized under §706.”
If the president “does not provide notification in the specified time and form,” according to the announcement, PUCSA will terminate all §706 orders after 12 hours. Finally, under PUCSA, all §706 orders will terminate in 48 orders unless three-fifths of the House and Senate vote to approve it, with the support of at least one-quarter of the minority party in each chamber. Congressional leaders can extend this period if Congress is adjourned and cannot reconvene due to an emergency or other circumstances.
“Our Constitution and laws place checks on arbitrary and expansive executive power in other spheres, and the internet deserves the same protections,” Griffith wrote in the announcement. “This bill would create guardrails so that any internet shutdown would require the consent of the people through their elected representatives.”
One of the two Democratic members of the FCC’s five-member governing commission, Jessica Rosenworcel, warned in the release that the office of the president can declare almost unlimited powers to restrict internet access across the country.
“Last year, the internet was shut down 122 times in 22 countries,” Rosenworcel wrote. “This is an alarming global trend that threatens democratic processes, human rights, and modern economic life. It’s hard to imagine it happening here at home. But it could. In the United States our laws are dated and they offer virtually unchecked power to the president over our wired and wireless communications when we face peril or national emergency.”
“This legislation would significantly curtail the president’s ability to order such a shutdown, which is a huge step in the right direction,” Access Now U.S. policy manager Eric Null wrote in the release. Harold Feld, senior vice president of Public Knowledge, added, “Shutting down the internet—a crucial component of our democracy and economy—would be disastrous. We can no longer leave that in the hands of just one person.”