No Congressional Approval Needed: The President’s Unchecked Power Over US Communications Commentary
Mehadi965 / Pixabay
No Congressional Approval Needed: The President’s Unchecked Power Over US Communications
Edited by: Ingrid Burke Friedman | JURIST Editorial Director
The author, an expert in US telecommunications law, argues that a little-known provision of the Communications Act grants any president sweeping, unchecked authority to shut down U.S. communications networks—and that Congress should act before a future administration decides to use it...

A recent article in the Washington Post concerning widespread internet shutdowns in Russia for alleged wartime defense purposes got me thinking: How hard would it be for this to happen in the US? It took me about a minute of online research to answer my own question: not hard at all.

Express Presidential Powers over US Communications Networks

As a semi-retired telecommunications attorney, the first thing that came to mind was a rarely (if ever) invoked provision of the Communications Act of 1934 that grants certain “war powers” to the President with respect to US communications infrastructure. The Communications Act is our Nation’s central communications law, under which the Federal Communications Commission was created and all our Nation’s mobile telephone, radio and television stations are licensed.

Buried toward the back pages of the Communications Act is Section 706 (codified as 47 USC § 606), bluntly labelled “War Powers of President,” which grants the President specific powers over US communications infrastructure and services during “wartime” or a “national emergency.” Under Section 706, the President has several sweeping and perhaps troubling authorities, including the ability to direct “carriers” (that is, mobile and wireline phone companies) to “prioritize” communications essential for national defense. The President can also suspend or modify FCC regulations for communication facilities, take control of or use wire or radio communication facilities, and order the closing of communication stations.

In short, without so much as a by-your-leave or late-night text message to Congress, the President has wide discretion, supported by federal law, to do precisely what Russian authorities have done throughout that somewhat less-than-democratically run country: order a shutdown of all licensed mobile radio networks in the US if the President deems it “in the interest of national security or defense.”

With the current Administration’s frequent, shall we say, expansive interpretations of laws regarding tariffs, military police powers, and termination of Congressionally-funded programs among other things, it strikes me as worth noting that this is one area where broad Presidential authority is expressly granted with zero Congressional oversight.

What is a War or National Emergency?

Well, surely our laws wouldn’t allow a President to routinely and summarily shut down the internet or broadcasting networks without some sound justifications, right? The problem is that the Communications Act does not define “war” or “national emergency” in any way that would constrain any President, even one with modest views of Executive Powers, from inappropriately exercising Section 706.

The war powers language arises from federal radio laws that existed prior to World War I; with some modifications these powers were included in the Communications Act of 1934. Back then, before we had “wars” on terror, immigration, drugs, poverty, and other global scourges, Congress presumably didn’t think it was necessary to expressly define a “war” in the Communications Act.

And so, from 1934 until now, these critical terms, “war” and “national security,” remain without any useful definition, modifications, or constraints in our Nation’s most important communications law. The staggering powers found in Section 706 can be invoked by any President, without Congressional consent, any time there is a purported “national emergency.”

How Often Have These War Powers Been Invoked?

One might assume that, since the passage of this law in 1934, some President would have had reason to invoke these broad powers over our Nation’s communications networks. Congress formally declared war in World War II, and while there have been no subsequent formal declarations of war, military force has been Congressionally authorized in Korea, Vietnam, Iraq and Afghanistan. Still, at no time since the adoption of this law in 1934 have its war power provisions ever been invoked by any President.

So then, what’s the worry? Who cares if we have a somnolent statutory provision that, at the mere perceived threat to our “National Security,” could be roused from nearly a century-long slumber?

Well, to state the painfully obvious, the current Administration seems to follow its own ideas regarding our legal system, checks and balances, and general notions of fair play. In September the President asked the Chairman of the FCC to revoke the broadcasting licenses of any TV network that had the temerity to broadcast “bad press” about the Administration. Similar threats to revoke broadcasting licenses were issued in recent weeks in response to a TV reporter’s “attitude.” Given this conspicuously low standard for broadcast license revocations (broadcasting anything but “positive news” about the current Administration), it’s almost a wonder that Section 706 has not yet been invoked by this President.

Still, it’s fair to ponder why any President would want to impair US Internet services. After all, wouldn’t that adversely impact the President’s own ability to text and contact followers on social media?

To me, the real problem is the unchecked leverage that this authority grants any sitting President over our Nation’s entire communications infrastructure. Section 706 grants the President authority to shut down all, or some, radio stations. If I, as President, think that certain broadcasters are distributing “negative news” that “threatens national security,” all I need do is warn all mobile service providers not to carry that content or risk having their networks shut down by Presidential edict.

Before we have an opportunity to witness such creative uses of Section 706, Congress really ought to revisit this law and place appropriate checks on this broad and potentially dangerous Executive Power. As currently written, it’s the type of law that even Russian authorities could live with.

Frederick M. Joyce, Esq. was previously the Chairman of the Telecommunications Group at Venable LLP law firm in Washington, D.C. and Chief Cyber and Communications Counsel for the US Coast Guard. Neither Venable nor the US Coast Guard has anything to do with the opinions expressed in this article.

 

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.
THIS DAY @ LAW

First meeting of the US Supreme Court

On February 1, 1790, the Supreme Court of the United States convened for the first time. The meeting was held at the Merchants' Exchange Building in New York City, then the national capital. Chief Justice John Jay presided over the first Court with five Associate Justices: James Wilson, John Blair, James Iredell, William Cushing, and John Rutledge. However, due to the limitations of 18th-century transportation technology, the meeting was postponed by Jay until the following day. The first meeting was held primarily to organize the Supreme Court. The Justices did not hear their first actual case, Chrisholm v. Georgia, until 1792.

Sir Edward Coke born

Sir Edward Coke, Chief Justice of the King's Bench and author of law reports and commentaries (including, most famously, Coke on Littleton), was born on February 1, 1552. Learn more about Sir Edward Coke.