On July 6, President Barack Obama signed Executive Order No. 13618, "Assignment of National Security and Emergency Preparedness Communications Functions," granting the Department of Homeland Security "powers to prioritize government communications over privately owned telephone and Internet systems in emergencies," the Washington Times reported Thursday. -- ("Prioritize" is the order's term; critics at the Electronic Privacy Information Center [EPIC] warn that it really means "seize.") -- The administration presented the order as an adaptation of powers previously existing to today's information environment, but EPIC lawyer Amie Stephanovich said that "The previous orders did not give DHS those authorities over private and commercial networks." -- “That’s a new authority," she said, adding: “This should have been done by Congress, so there could have been proper debate about it. This is not authority that should be granted by executive order.” -- COMMENT: EPIC's Jul. 9 piece on the order, "Executive Order Grants Authority to Seize Private Communications Facilities," noted that "Under the Executive Order the White House has also granted the Department the authority to seize private facilities when necessary, effectively shutting down or limiting civilian communications," yet there has so far been little mainstream media attention to this decree. -- There has been much commentary abroad, however. -- The Daily Mail (London) published an article, for example, and Russia Today (Moscow) said that "Obama reportedly kept the signing of the order as low-key as possible." -- RT presented a TV interview with David Lindorff, who called the order "a huge threat" that allowed the government to "grab control of the Internet," and attorney Paul Wolf, who called the order "unprecedented" in American history). -- Le Monde (Paris) published a short piece that is translated below in toto. -- Many libertarian, conservative, and IT websites also reacted critically. -- COMMENT: It is curious that we can find no source that points out that the U.S. is in fact already in an official state of "national emergency," and has been since Sept. 14, 2001; Barack Obama has formally extended this "national emergency" annually, most recently on Sept. 9, 2011, in a document entitled "Notice from the President Regarding the Continuation of the National Emergency with Respect to Certain Terrorist Attacks." ...
DHS EMERGENCY POWER EXTENDED, INCLUDING CONTROL OF PRIVATE TELECOM SYSTEMS
By Shaun Waterman
July 12, 2012
The Obama administration has given the Department of Homeland Security powers to prioritize government communications over privately owned telephone and Internet systems in emergencies.
An executive order signed [July 6 ( http://www.whitehouse.gov/the-press-office/2012/07/06/executive-order-assignment-national-security-and-emergency-preparedness- ) (the *Washington Times* article says "June 6")] “gives DHS the authority to seize control of telecommunications facilities, including telephone, cellular, and wireless networks, in order to prioritize government communications over private ones in an emergency,” said Amie Stephanovich, a lawyer with the Electronic Privacy Information Center (EPIC).
The White House says Executive Order 13618, published Wednesday in the Federal Register, is designed to ensure that the government can communicate during major disasters and other emergencies and contains no new authority.
“The [order] recognizes the creation of DHS and provides the Secretary the flexibility to organize the communications systems and functions that reside within the department as [she] believes will be most effective,” White House spokeswoman Caitlin Hayden said in an email. “The [order] does not transfer authorities between or among departments.”
She said the order replaced one originally signed in 1984 by President Reagan and amended in 2003 by President George W. Bush after DHS was set up and took responsibility for emergency response and communications.
When the original order “was written during the Cold War, the motivating national security concern was maintaining communications capability following a devastating nuclear strike,” Ms. Hayden said.
The new order “address[es] a world in which our economy and government are far more reliant on communications technologies to maintain essential functions than we were then,” she wrote.
At issue is a provision of the four-page order that says Homeland Security Secretary Janet A. Napolitano “shall . . . satisfy [federal] priority communications requirements through the use of commercial, government, and privately owned communications resources.”
“The previous orders did not give DHS those authorities over private and commercial networks,” Ms. Stepanovich said. “That’s a new authority.”
“This should have been done by Congress, so there could have been proper debate about it,” she added. “This is not authority that should be granted by executive order.”
Ms. Hayden said the legal basis for the order is Section 706 of the 1934 Communications Act. The section authorizes the president to “cause the closing of any facility or station for wire communication” and gives him “control of any such facility or station” if a state of war, or the threat of one, exists.
The new order “extends Section 706 powers to the Internet,” said James Harper, an electronic-privacy advocate at the Cato Institute, a libertarian think tank.
The authorities “might have made sense in the 1930s,” but now the communication networks are too complex and interdependent, he said. “If you try to seize control of the Internet that way, you will break it.”
Under the previous executive orders, communications providers have long established priority access programs for federal users. In the telephone system, a special code the user inputs before dialing a number automatically tells the phone companies’ equipment to give the call priority.
“Mobile phones, the Internet, and social media are all now integral to the communications landscape,” Ms. Hayden said.
OBAMA SIGNS CONTROVERSIAL DECREE ON CONTROL OF THE INTERNET IN THE EVENT OF CATASTROPHE
Le Monde (Paris)
July 11, 2012
On Tuesday, July 10 [sic -- the order is dated July 6], Barack Obama signed a much-criticized presidential decree redefining the role of communications agencies in the event of a natural catastrophe or national security threat. After declaring that "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," the text specifies the measures that can be taken.
Point 5.2 is particularly criticized by advocates of Internet privacy, since it confers on the U.S. secretary for homeland security the power to "oversee the development, testing, implementation, and sustainment" of emergency measures put in place by several communication relays, including "non-military communications networks," or in other words the Internet provided to the public at large.
The American site The Verge nevertheless reminded readers that an earlier presidential decree, mentioned in the text signed by Mr. Obama, already established the possibility for the federal government to requisition both the networks in the government's possession and those held by private operators in the event of a crisis.
Translated by Mark K. Jensen
Associate Professor of French
Department of Languages and Literatures
Pacific Lutheran University
Tacoma, WA 98447-0003