Cybersecurity Act would give president power to 'shut down' Internet
Greg Fulton
Published: Monday April 13, 2009

A recently proposed but little-noticed Senate bill would allow the federal government to shut down the Internet in times of declared emergency, and enables unprecedented federal oversight of private network administration.

The bill's draft states that "the president may order a cybersecurity emergency and order the limitation or shutdown of Internet traffic" and would give the government ongoing access to "all relevant data concerning (critical infrastructure) networks without regard to any provision of law, regulation, rule, or policy restricting such access."

Authored by Democratic Sen. Jay Rockefeller of West Virginia and Republican Olympia Snowe of Maine, the Cybersecurity Act of 2009 seeks to create a Cybersecurity Czar to centralize power now held by the Pentagon, National Security Agency, Department of Commerce and the Department of Homeland Security.

While the White House has not officially endorsed the draft, it did have a hand in its language, according to The Washington Post.

Proponents of the measure stress the need to centralize cybersecurity of the private sector. "People say this is a military or intelligence concern," says Rockefeller, "but it is a lot more than that. It suddenly gets into the realm of traffic lights and rail networks and water and electricity."

Snowe added, "America's vulnerability to massive cyber-crime, global cyber-espionage and cyber-attacks has emerged as one of the most urgent national security problems facing our country today. Importantly, this legislation loosely parallels the recommendations in the CSIS [Center for Strategic and International Studies] blue-ribbon panel report to President Obama and has been embraced by a number of industry and government thought leaders."

Critics decry the broad language, and are watchful for amendments to the bill seeking to refine the provisions. According to opencongress.com, no amendments to the draft have been submitted.

Organizations like the Center for Democracy and Technology fear if passed in its current form, the proposal leaves too much discretion of just what defines critical infrastructure. The bill would also impose mandates for designated private networks and systems, including standardized security software, testing, licensing and certification of cyber-security professionals.

"I'd be very surprised if it doesn't include communications systems, which are certainly critical infrastructure," CDT General Counsel Greg Nojeim told eWEEK. "The president would decide not only what is critical infrastructure but also what is an emergency."

Adds Jennifer Granick, civil liberties director of the Electronic Frontier Foundation, "Essentially, the Act would federalize critical infrastructure security. Since many systems (banks, telecommunications, energy)are in the hands of the private sector, the bill would create a major shift of power away from users and companies to the federal government."

Stockholm court: Pirate Bay judge wasn't biased!


Soon after The Pirate Bay trial ended in a guilty verdict, the site admins objected to alleged "bias" in district judge Tomas Norström. Turns out that Norström was a member of two different copyright organizations, one of which received some of its money from global music trade group IFPI. A court of appeals agreed to look into the matter, even assigning the review to a different section of judges that usually does not deal with copyright questions to avoid any appearance of conflict of interest.

As part of the appeal, the Stockholm District Court has now weighed in, defending its judge, according to newspaper Svenska Dagbladet (read an English summary).

Norström, it says, wasn't biased at all, but simply a member of organizations in which he learned more about copyright and kept abreast of new developments. It certainly was not Norström's only way of keeping up to date on copyright, and such professional memberships should not be used as evidence of bias.

Norström belongs to the Swedish Copyright Association along with Henrik Pontén, Peter Danowsky, and Monique Wadsted—all lawyers who represented the recording industry in the Pirate Bay trial. Norström also sits on the board of the Swedish Association for the Protection of Industrial Property, an advocacy group that pushes stricter copyright laws.

The appeals court will rule on the issue of judicial bias soon, but either way, the case will continue. If Norström is found to be biased, the case will likely have to be retried; if not, the Pirate Bay defendants have already signaled their desire to appeal the verdict.

As they wrote soon after the trial concluded, "We have to remember that this will not be the final decision, only the first before the losing party will appeal. It will have no real effect on anything besides setting the tone for the debate, so we hope we win of course."

Movie and music rightsholders have already filed their own appeal. In addition to seeking more cash (the 30 million kronor damage award was far too low, they say), lawyers for the content owners want the charge of "infringing copyright" restored against the defendants. During the trial, this charge was dropped and "contributory copyright infringement" was the charge under which The Pirate Bay admins were found guilty.

All of which leaves one thing perfectly clear: The Pirate Bay's legal battle will continue, probably for years.

STATE OF MICHIGAN

JENNIFER M. GRANHOLM, ATTORNEY GENERAL



CRIMINAL LAW:

FIREARMS:

LAW ENFORCEMENT:

PEACE OFFICERS:

POLICE:
     

Reserve police officer carrying exposed but holstered handgun is not brandishing firearm in violation of Michigan Penal Code

A reserve police officer, by carrying a handgun in a holster that is in plain view, does not violate section 234e of the Michigan Penal Code, which prohibits brandishing a firearm in public.


Opinion No. 7101

February 6, 2002

Honorable Bill Bullard, Jr.
State Senator
The Capitol
Lansing, MI



You have asked if a reserve police officer, by carrying a handgun in a holster that is in plain view, violates section 234e of the Michigan Penal Code, which prohibits brandishing a firearm in public.

The Michigan Penal Code, MCL 750.1 et seq, revises, consolidates, and codifies the state's criminal statutes. Section 234e(1) of the Code criminalizes1 the brandishing of a firearm in public as follows:

       (1) Except as provided in subsection (2), a person shall not knowingly brandish a firearm in public.

Subsection (2) of the same section states that "[s]ubsection (1) does not apply to . . . [a] peace officer lawfully performing his or her duties as a peace officer."

The term "peace officer" refers to members of governmental police forces who have been given broad, general authority by law to enforce and preserve the public peace. People v Bissonette, 327 Mich 349, 356; 42 NW2d 113 (1950). Most governmental police officers, i.e., officers who are employed by the state or its political subdivisions, possess such authority and are, therefore, "peace officers." 1 OAG, 1955, No 1891, p 72 (February 24, 1955); 2 OAG, 1958, No 3212, p 60 (February 21, 1958). Conversely, police officers such as motor carrier enforcement officers who possess only restricted or special enforcement authority do not meet this standard and therefore do not qualify as "peace officers." People v Bissonette, supra; OAG, 1987-1988, No 6530, p 362 (August 5, 1988). Thus, a reserve police officer with limited law enforcement authority would not qualify as a "peace officer" under subsection 2 of section 234e of the Michigan Penal Code. A reserve police officer with general law enforcement authority who is regularly employed would qualify as a "peace officer" under subsection (2) of section 234e. See OAG, 1973-1974, No 4792, p 78 (August 27, 1973), and OAG, 1979-1980, No 5806, p 1055 (October 28, 1980).

Section 234e of the Michigan Penal Code does not define the crime of brandishing a firearm in public. The Michigan Criminal Jury Instructions, published by the Committee on Standard Criminal Jury Instructions, does not include a recommended jury instruction on brandishing a firearm. Research discloses that while the term "brandishing" appears in reported Michigan cases,2  none of the cases define the term.

In the absence of any reported Michigan appellate court decisions defining "brandishing," it is appropriate to rely upon dictionary definitions. People v Denio, 454 Mich 691, 699; 564 NW2d 13 (1997). According to The American Heritage Dictionary, Second College Edition (1982), at p 204, the term brandishing is defined as: "1. To wave or flourish menacingly, as a weapon. 2. To display ostentatiously. –n. A menacing or defiant wave or flourish." This definition comports with the meaning ascribed to this term by courts of other jurisdictions. For example, in United States v Moerman, 233 F3d 379, 380 (CA 6, 2000), the court recognized that in federal sentencing guidelines, "brandishing" a weapon is defined to mean "that the weapon was pointed or waved about, or displayed in a threatening manner."

Applying these definitions to your question, it is clear that a reserve police officer, regardless whether he or she qualifies as a "peace officer," when carrying a handgun in a holster in plain view, is not waving or displaying the firearm in a threatening manner. Thus, such conduct does not constitute brandishing a firearm in violation of section 234e of the Michigan Penal Code.

It is my opinion, therefore, that a reserve police officer, by carrying a handgun in a holster that is in plain view, does not violate section 234e of the Michigan Penal Code, which prohibits brandishing a firearm in public.



JENNIFER M. GRANHOLM
Attorney General

1Violation of this section is a misdemeanor punishable by imprisonment for up to 90 days, or a fine of not more than $100, or both.

2 See, for example: People v Jones, 443 Mich 88, 90; 504 NW2d 158 (1993), People v Kreger, 214 Mich App 549, 552; 543 NW2d 55 (1995), and People v Stubbs, 15 Mich App 453, 455; 166 NW2d 477 (1968).