The federal government is getting into the fray over internet security in a national crisis. (See Yahoo Article here) A Senate committee considered and then promptly dropped language in a cybercrime bill that would have authorized the President to shut down internet traffic to compromised web sites. This comes in the larger context of trying to set policy on technical security for the nation, in light of our increasing dependency on the framework created by the internet. Assuming that the shutdown of a web site was technically feasible, a war-time President would likely have the authority to do so, whether Congress passed a law about it or not. See U.S. Const. Art. II Sect. 2 cl. 1. As a practical matter, if the President could allow for the rounding up of U.S. citizens during World War II solely because of their race, I think the President can safely assume that shutting down a web site would be constitutional. See Korematsu.
The difficulty today, however, is that following 9/11, President Bush asserted that we are constantly at war with terrorists. Unlike a more traditional notion of war which has a relatively clear start and end, defining war in this manner means that the President is constantly acting within his war powers. I don’t think the founders of our nation intended for us to have a king, or contemplated that we would be in a constant state of war. And the danger is that the President would exercise the power to shut down certain web sites deemed a security risk, without much recourse for the web site owner. So sites that might have an infection could be shut down, but so could those that disagreed with Presidential policies.
The risk to our internet infrastructure is real. The authors of computer viruses today have come a long way from the kids of the 1990’s that were trying to annoy you. Major web sites like yahoo.com and malicious ads on Google’s AdWords have been infected with viruses that would then attack users of that web site, potentially infecting many millions of computers. Our ability to effectively respond to such problems is directly related to how well we prepare for their realization. Perhaps instead of delegating such broad authority to the President, we should instead work on delegating power to act under more specific circumstances which would better balance the free speech rights of web site operators against the technical security needs of the nation.