The recent executive order from President Barack Obama entitled “Assignment of National Security and Emergency Preparedness Communications Functions” brings to the fore the limits (or lack thereof) on the powers of the federal government when it comes to IT. But is this latest executive order something to worry about, or is it just a prudent preemptive action by a government concerned with the security and safety of its citizenry?
What’s in the Executive Order?
The executive order in its entirety is available at the White House website (“Executive Order — Assignment of National Security and Emergency Preparedness Communications Functions”). The document, although something of a read, is by no means as intimidating as typical legislation these days (the recent Patient Protection and Affordable Care Act, popularly known as Obamacare, stands at some 2,700 pages). The order opens by outlining the executive branch’s desire to maintain the federal government’s ability to communicate in all circumstances, particularly in the case of emergencies. “The Federal Government must have the ability to communicate at all times and under all circumstances to carry out its most critical and time sensitive missions. Survivable, resilient, enduring, and effective communications, both domestic and international, are essential to enable the executive branch to communicate within itself and with” everybody else.
Concerns about the executive order focus largely on section 5.2, which could be interpreted as giving the federal government the authority to commandeer private network infrastructure for government use. According to NetworkWorld (“White House order on emergency communications riles privacy group”), “Amie Stepanovich, associate litigation council at EPIC pointed to a one-sentence provision in the order [Sec. 5.2 (e)] that directs the secretary of DHS to develop measures for ensuring that commercial and privately-owned communications resources are available for government use when appropriate.” This part of the order states, “The Secretary of Homeland Security shall:…satisfy priority communications requirements through the use of commercial, Government, and privately owned communications resources, when appropriate.” Indeed, the order seems to do just what critics fear. But is this cause for alarm?
News Flash: The Federal Government Recognizes No Meaningful Limits on Its Powers
IT and electronic communications has become such an integral part of both personal and business life that any threat to it is sure to rile many. (Be honest: how did you feel last time you lost Internet access because of a provider or utility outage?) And when President Obama (apparently) threatens to seize control of the Internet when he deems it necessary, red flags are raised. But the problem is far deeper: an honest look at the federal government shows that it in truth recognizes no limits on its powers. Sure, the occasional Supreme Court verdict (written, incidentally, by employees of the federal government) strikes down this or that law, but fundamentally, nothing stops the feds from sticking their collective nose in wherever they want. For a case in point, simply look at the recent Obamacare ruling as outlined in the judicial opinion of John Roberts: “Put simply, Congress may tax and spend. This grant gives the Federal Government considerable influence even in areas where it cannot directly regulate. The Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control.”
The classic litmus test that has often been used to determine whether a law or judicial decision grants unlimited power to the federal government is the broccoli standard: does it mean that Congress can force someone to eat broccoli? The majority opinion in the Obamacare case would seem to indicate “yes.” That doesn’t necessarily mean someone can be imprisoned for not eating broccoli, but Congress can tax someone for not eating broccoli—presumably to the prohibitive level that makes eating broccoli a practical necessity. (After all, why not just impose a 100% income tax on those who hate that green tree-like vegetable?)
So, let’s extend this logic to the case of IT networks. Assume the federal government wants to use private networks whenever it deems it necessary; Congress can simply impose a prohibitive tax on those companies that do not comply. The result? Companies will comply or they will go out of business. Indeed, Congress could impose a greater tax on those companies that go out of business just to keep them in business and paying the other tax. Would this necessarily happen? No—this hypothetical situation is obviously somewhat over the top. But it illustrates the principle that the federal government has no fundamental limits on its power to claim ownership over anything and everything in its purview.
What’s IT and Communications Got to Do With It?
The bottom line is that complaining about this executive order by clinging to the idea that the federal government is limited in its powers is essentially a lost cause—you’re decades (if not centuries) too late to that debate. Furthermore, the effective scope of this executive order is unlikely to affect the data centers of most companies. Some random enterprise running a data center to enable sales, product development or internal communications is unlikely to be receiving a call from the feds in the event of an emergency. It’s most likely to affect large carriers: the Verizons, Comcasts, CenturyLinks and similar companies. The irony is that these mega communications corporations can hardly be viewed as private entities: they do not compete in private markets. They are virtual monopolies enforced by governments—so they have little ground to complain about an executive order that says they are at the mercy of the feds in an emergency.
Sure, smaller private companies could possibly be affected. But that’s life in the United States, as the post–September 11 obsession with national security has abundantly illustrated. All rights and freedoms are effectively thrown out the window when they get in the way of the vaunted War on Terror—or whatever other cause is deemed a national priority. (Who, 20 or 30 years ago, would have thought mandatory pat-downs or see-through-your-clothes scans at the airport are compatible with a free society?)
All of this, however, is not to say that the federal government should be able to commandeer private IT networks, even in an emergency. It is to say, however, that focusing on this issue is like chopping off a weed at ground level: it doesn’t address the cause of the problem, which is an overreaching national government. The assault on IT assets is just the latest incarnation—one that hits at something precious to many people, and something that is one of the last remaining markets with economic strength and potential. People love their gadgets, and they love to communicate, shop, work and so much more using them. But the recent executive order on communications networks won’t frighten many into examining whether the government has too much power, unfortunately. Indeed, few situations are likely in which such powers would be exercised. But perhaps at some point a recognition will arise that perhaps the constant encroachments of the federal government and the flagging economy are all related to excessive nosiness by governments at all levels. Freedom has made the Internet—and to a proportional extent IT—a powerful economy of its own. Why not try it everywhere else?
Photo courtesy of MCS@flickr