As the article I previously posted points out, Washington D.C. is currently considering a bill which would give the President the ability to shut off certain privately owned computer systems in case of a “national emergency.” In other words, the Executive would have the ability to shut down crucial internet points in the name of national security. The proposed Bill also states that it “shall not be subject to judicial review.”
Here are a few of my quick-hit thoughts.
(1) Unfettered discretion over private speech? The Congress should be careful in delegating this authority to the President. The U.S. Supreme Court has articulated that standards which give one person or entity whether to allow or permit speech needs to be stated with particularity — and they cannot place too much discretion in the decision-maker (The President, in this case).
(2) Vagueness? A component of due process is that a law be written to the point where a reasonable person of average intelligence would be able to understand it and follow it. Is it possible to articulate in precise language when the requisite “national emergency” occurs which allows the President to shut off speech?
(3) Overbreadth? Under U.S. Supreme Court free speech precedent, any regulation touching on free speech cannot regulate more speech than is necessary to further a governmental interest. Is it necessary that the President shut down a ton of private computer networks, or just a few? It wouldn’t be hard to make the argument that shutting down a website is tantamount to silencing more speech than is necessary.
(4) Court-stripping? The bill attempts to remove itself from the possibility of judicial review. This probably does not work. While Congress has very strong authority to strip the jurisdiction of “inferior” federal courts (district courts and appellate courts), it probably cannot remove this bill from Supreme Court review all together. Due process, right? The shutting down of an internet website is clearly a deprivation of life, liberty or property — so the owner should get his/her day in court.
While it’s still early, there are clearly several Constitutional issues in play with this legislation.