Pat Dollard

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Time:

Here’s an idea: How about creating an Internet kill switch, so the government can shut off the Internet when it decides it is necessary?

That may sound absurd, but a lot of people are convinced this is already in the works. How many? Google the words “Internet kill switch” and you will soon find out.

What has them worried is the Protecting Cyberspace as a National Asset Act, sponsored by independent Senator Joseph Lieberman of Connecticut, Republican Susan Collins of Maine and Democrat Tom Carper of Delaware. The bill aims to make it easier for the government to respond to Internet-based attacks that threaten national security. (See the top 10 technology bans.)

Online, issues often break down along partisan lines, but liberals and conservatives are both worried that the Lieberman-Collins-Carper bill could turn the President into an Internet overlord. It has been a hot topic on the left-leaning blog Daily Kos, where one poster urged fellow readers to tweet the White House saying, “We DO NOT support the Internet Kill Switch.” On the right-leaning Red State blog, a poster recently railed against the bill under the headline “Obama’s Orwellian Control of the Internet.” A letter to Lieberman, Collins and Carper expressing concern about the effect of the bill on civil liberties was signed by the American Civil Liberties Union (ACLU) and the very liberal National Lawyers Guild – and, on the other end of the spectrum, by the Citizens Committee for the Right to Keep and Bear Arms and Liberty Guard, which has sued the Federal Government to stop the new national health care reform from taking effect.

It is not hard to see why everyone is so worried. Imagine a President misusing this particular power: If the people are rising up against an unpopular Administration, the President could cool things down by shutting off a large swath of the Internet. He could target certain geographical regions (“We’ve heard enough from New York and California for a while”). Or he could single out particular websites. (See TIME’s 50 best websites from 2009.)

The government certainly has a record of overusing authority it is given when national security is involved – we saw that, a few years ago, with the Bush Administration’s domestic wiretapping program.

The sponsors of the cybersecurity bill insist that their bill would not give the President an Internet kill switch. Senator Lieberman expressly labels this a “myth” on his Senate website. Senator Collins has said it has been “frustrating” to read all the reports of an Internet kill switch. In fact, she has argued, the bill would limit rather than expand the President’s power.

So, would the bill actually create an Internet kill switch? No, it does not seem to. But it is hard to say with any precision what it would do – and that is the problem with the bill. (Read about the Pentagon’s past cyberwar strategies.)

The President already has broad power under the Communications Act of 1934 to shut down wire communications, which includes the Internet, if he determines that there is a “state or threat of war.” When Collins says that the bill would limit the President’s power, she means it would impose more restrictions on when he could shut down parts of the Internet than the 1934 act does.(Comment on this story.)

True enough. But critics of the bill point out that it expands the President’s power over the Internet in a key respect: the 1934 law only applies when there is war or a threat of war, while the new law would allow the President to act even when there is not a war or a threat of war. “All I can say is it gives him power to act where he wouldn’t necessarily have the power to act” under existing law, says Lee Tien, a lawyer with the Electronic Frontier Foundation.

The bill authorizes the President to declare cyber emergencies, and what happens next is fairly unclear. He would be able to restrict parts of the Internet that relate to “critical infrastructure,” but it is hard to know what exactly falls under the category of critical infrastructure and how far the President could go in closing it down.

“What authority the government would have is not laid out at all in the law,” says Michelle Richardson, a lawyer in the Washington office of the ACLU.

The Lieberman-Collins-Carper bill has some built-in protections, including a prohibition on identifying targets based solely on activities protected by the First Amendment. And give the sponsors credit for this: the bill has been changing, and improving, as it has moved through the Senate.

But here is the problem: even lawyers like Tien and Richardson, whose job it is to monitor the bill, say they are not certain what it would do and how far it would go.

The bill may not authorize the creation of a literal Internet kill switch – at least in the sense of authorizing the President to shut down the entire online world. But it would give the government new authority to restrict the Internet during what it considers to be emergencies.

Given how important the Internet has become to freedom of speech, political organizing and daily life, that is not a power that should be handed over lightly, even in the name of national security. We are entitled to know exactly what the government proposes to do – in language clear enough for both lawyers and nonlawyers to understand.

Cohen, a lawyer, is a former TIME writer and a former member of the New York Times editorial board.