Department of Homeland Security Secretary Janet Napolitano testified before the Senate Committee on Homeland Security and Governmental Affairs on September 19, 2012 and said that a cyber security executive order is "close to completion" that will grant the president broad and sweeping powers over the internet.
Napolitano said, “DHS is the Federal government’s lead agency for securing civilian government computer systems and works with our industry and Federal, state, local, tribal, and territorial government partners to secure critical infrastructure and information systems."
Joe Wolverton, II, at the New American, rightly points out the problem with the federal government's exercising an authority they are not specifically given in the Constitution.
Precisely which clause in the Constitution grants to the president specifically or the executive branch (of which DHS is a part) generally authority to exercise any sort of oversight of such matters was not cited by Secretary Napolitano.
Naturally, a document written 225 years ago would not include a reference to cyber security, but the principles of enumerated powers and limited government apply to any program or project of the federal government. According to the contract that created the three branches of the federal government, none of those departments may do anything unless specifically granted that authority in the Constitution.
This is a principle of constitutional interpretation often overlooked. Those promoting a larger government with increasing influence on the lives of private citizens commonly defend government growth by insisting that “nothing in the Constitution forbids us from doing” whatever federal program they are advocating.
Had I been living at the time, I would have sided with the anti-Federalists. However, Wolverton goes on to point out that James Madison wrote in The Federalist, No. 45:
The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
The reason this is all taking shape into an executive order is because the Congress shot down the overreaching powers of the federal government in the cyber security bill earlier this year. They did so with good reason. Not only was it a stealth bill to introduce more gun control, but back in July it was reported that,
The updated version of the bill reflects changes to the provision to assign the Department of Homeland Security the role of creating mandatory cyber security standards for infrastructure industries.
The newer version of the bill does not include language for “mandatory, regulatory sections,” but still requires a creation of industry best practice standards for the purposes of protecting critical infrastructure, but rather than making the adoption of those standards mandatory, the owners of the critical infrastructure adopt “voluntary” standards. The bill offers incentives to adopt those standards, such as liability protection, and access to threat information.
Some contend that the revisions are not ideal, however, as it gives the government the power to deny threat information to critical infrastructure owners who choose not to comply with the voluntary standards. Likewise, the incentives are too insignificant to fully incentivize any company to adopt the standards.
My fellow Americans, do we really want the federal government to have this kind of power? Really? I know some will say "yes, we need this," but before you move too fast, think about it. We're talking about the incompetent Department of Homeland Security here, under the direction of the President of the United States.
while the current President tried to instill fear in the American people if such legislation did not pass, just like he did with the stimulus and auto bailouts (look where that got us), he tried to do so in a Wall Street Journal piece, in which he wrote,
It doesn't take much to imagine the consequences of a successful cyber attack. In a future conflict, an adversary unable to match our military supremacy on the battlefield might seek to exploit our computer vulnerabilities here at home. Taking down vital banking systems could trigger a financial crisis. The lack of clean water or functioning hospitals could spark a public health emergency. And as we've seen in past blackouts, the loss of electricity can bring businesses, cities and entire regions to a standstill.
This is the future we have to avoid. That's why my administration has made cyber security a priority, including proposing legislation to strengthen our nation's digital defenses. It's why Congress must pass comprehensive cyber security legislation.
We all know what needs to happen. We need to make it easier for the government to share threat information so critical-infrastructure companies are better prepared. We need to make it easier for these companies—with reasonable liability protection—to share data and information with government when they're attacked. And we need to make it easier for government, if asked, to help these companies prevent and recover from attacks.
While the executive order will more than likely start off with standards and obligations that will be deemed as voluntary, there is no doubt that government will not be satisfied with that. They want the power to punish companies that will violate the EO. Secretary Napolitano said, “DHS leverages the skills and resources of the U.S. Secret Service (USSS) and ICE, who investigate cyber criminals and work with the Department of Justice, which prosecutes them."
That's correct. Those agencies fall under the executive branch which are law enforcement agencies. Therefore, what good does a law do or an executive order for that matter if it is not enforceable, but only a suggestion? Frankly nothing. So there is cause for concern here.
Eventually when you grant power to government, they will always go in the direction of tyranny. This is why they must be called back to the Constitution. Once they are directed there, then this business about executive orders and over reaching power of the federal government is not even a subject for discussion.
Below is the draft of the cyber security executive order: