Published by The Lawfare Institute
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Masha Gessen is a pro-democracy activist and journalist born in Moscow who for years risked her freedom and more to stand up to Vladimir Putin’s regime. She now lives in New York. Shortly after last week’s election of Donald Trump as president, she published a remarkable essay, Autocracy: Rules for Survival. Her number one rule? Believe the autocrat.
Whether or not Trump becomes an autocrat will depend on whether Americans finally begin to take the things he says seriously. If he does not mean them, let him say so. Don’t dismiss them because you think they are foolish or funny or because you simply do not believe what you are hearing.
A good place to begin is with the internet. In CSM Passcode on Thursday, I wrote:
The view that the internet should be open, interoperable, and free from state censorship has been a pillar of American policy since the 1990s. Mr. Trump sharply departs from this establishment consensus. "We’re losing a lot of people because of the internet," he mused at a rally in South Carolina last year . . . . "We have to talk ... about, maybe in certain areas, closing that internet up in some way."
As Trump served up a stream of shocking and attention-grabbing statements during his campaign, this one passed by with comparatively little attention. For those who did notice, Trump’s statement drew ridicule, in part because it was accompanied by a bizarre suggestion that he could call up his fellow billionaire Bill Gates to find out how to turn off the internet.
Trump’s comments were labeled “science fiction” by the John Markoff of the New York Times and were largely ignored by other mainstream media outlets. Progressive sites dismissed Trump’s ideas as “stupid”—further evidence of his ignorance about the internet and many other issues. They also provided great fodder for some hilarious memes on Twitter.
Markoff, for one, should have known better. I wrote:
The idea . . . is not some impossible dream. China, Cuba, Russia, Saudi Arabia, and North Korea all "close that internet up" in "certain areas." If Mr. Gates declines to help, Trump could ask advice of Vladimir Putin or Xi Jinping.
Even Western countries like Australia have considered implementing internet filtering. Trump’s ideas are neither stupid, funny, nor are they science fiction. They are dangerous.
There is legal authority Trump’s lawyers could invoke, even without going to Congress. In 2010, Senator Joseph Lieberman argued that the president should have power to seize control of parts of the internet to protect against cyber attacks on critical infrastructure. When critics started calling his proposal the “internet kill switch,” he withdrew it, arguing that the President already had this power under section 606 of the Communications Act of 1934. As I wrote last week:
Section 606 of the Communications Act of 1934 provides emergency powers to seize control of communications facilities if the president declares there is a "war or threat of war" or "a state of public peril." In 2010, a Senate report concluded that section 606 "gives the President the authority to take over wire communications in the United States and, if the President so chooses, shut a network down." With a stroke of a pen, Trump could invoke it.
Section 606 has never been applied to the internet, but there is nothing in the law that explicitly says it cannot be. The question is whether the government’s statutory authority over traditional telecommunications under 606 extends to the internet. The issue is similar to the question of whether the FCC can use its regulatory authority to impose “net neutrality” rules under other provisions of the statute. In June 2016, the U.S. Court of Appeals for the D.C. Circuit upheld the FCC’s power to impose “net neutrality” rules.
If Trump wants to “close that internet up,” all he will need is an opinion from his Attorney General that section 606 gives him authority to do so, and that the threat of terrorism is compelling enough to override any First Amendment concerns. It is critically important that a member of the Senate Judiciary Committee ask Trump’s nominee, Senator Jeff Sessions, what he thinks about this issue.
We already know what Trump thinks. Immediately after suggesting internet filtering, Trump said, "Somebody will say, 'Oh, freedom of speech, freedom of speech.' These are foolish people."
As early 2008, scholars like Jonathan Zittrain were arguing that the openness of the internet was not a law of nature, but a law of code—code that can easily be changed by companies and governments. Zittrain’s The Future of the Internet and How to Stop It argues that security fears may threaten the survival of the internet as we know it.
If we want to stop Trump’s internet from becoming the future, we had better stop laughing and get to work.