The US government couldn’t shut down the Internet, right? Think again.

You might think it could never happen here in the United States. But think again. To understand how, start with the Communications Act of 1934 — which, though it has been amended and updated several times, is essentially an 86-year-old law that is still the framework for US communications policy today. Section 706 of this law allows the president to shut down or take control of “any facility or station for wire communication” if he proclaims “that there exists a state or threat of war involving the United States.” With respect to wireless communications, suspending service is permitted not only in a “war or a threat of war,” but merely if there is a presidential proclamation of a “state of public peril” or simply a “disaster or other national emergency.” There is no requirement in the law for the president to provide any advance notice to Congress. The language here is undeniably broad. The power it describes is virtually unchecked.  That’s not surprising, since some of the last changes made to this section of the law were introduced in 1942, shortly after the attack on Pearl Harbor, when Congress was laser-focused on protecting our safety and security. 

If you believe there are unspoken norms that would prevent a U.S. president from using Section 706 this way, recent history suggests that past practice is no longer the best guide for future behavior. Norms are now broken all the time in Washington. It’s time for a front-to-back assessment of Section 706. We need a dialogue about what it means and what it should mean in the digital age. We need Congress to consider how this power squares with the Constitution and ask what role there should be for the legislative and judicial branches.