The Unconstitional Enemy Expatriation Act

There’s a bill, the Enemy Expatriation Act, that aims to strip US citizens of their citizenship if they are accused of “engaging in, or purposefully and materially supporting, hostilities against the United States.” (The term “hostilities” is defined to mean any conflict subject to the laws of war.)

This is almost certainly unconstitutional. The US Supreme Court held some years ago that it was impossible for a US citizen to unintentionally give up his citizenship. In particular, formally renouncing your citizenship in front of a foreign official was not enough to actually lose your citizenship, because maybe you intended to retain your citizenship (and were just going through the motions of renouncing it as part of obtaining citizenship of some other country).

Now, the Supreme Court has become pretty unreliable on this sort of thing of late, but it seems to me that if formally renouncing your citizenship is ineffective, just in case you didn’t really mean it, then a whole lot of things that fall under the general heading of “supporting” (such as donating money to a charity that is later found to have been diverting some of that money to groups that are in some way connected with other groups that are accused of) hostility certainly don’t qualify as intentional renunciation.

Would we lose internet service if there were riots?

All the smart folks on twitter have been asking questions along this line. If we had civil unrest, would the government try to cut off our internet access? (I have no doubt that if they tried, they’d succeed. Internet and cell phone providers are regulated companies; they’d roll over in two seconds.)

I think that would be bad.

First of all, it would be unconstitutional. At a minimum, such an action would infringe several first amendment freedoms: speech, press, assembly, and to petition the government.

More important, in a stable democracy like the US, I think internet and cellular service would be at least as much a stabilizing force as it would be a destabilizing force. In the event of civil unrest there would be many powerful voices calling for calm and for non-violence. Shutting off the internet would silence those voices along with the voices of those trying to organize protests.

So, I just sent this note to my congressman, urging him to take steps to protect citizens’ access to telecommunications services:

Prompted by the recent news that the Egyptian government cut off internet and cell phone connectivity for its citizens, it occurred to me that this tool of repression should not be available in the United States.

At a minimum, I urge you to oppose any legislation along the lines of last year’s “Protecting Cyberspace as a National Asset Act,” but I think you should go further.

I’d very much like to see legislation that would specifically bar the government from shutting down internet or cellular connectivity for US citizens, and that would bar telecommunication providers from “voluntarily” complying with “requests” from the government that they stop providing connectivity to persons in the US.

Of course, legal solutions only go so far. They would be much strengthened by technological solutions. Cell phones and internet access points can be designed to mesh with other nearby devices. That would make it vastly more difficult for a top-down order to shut down connectivity—hopefully, difficult enough that governments wouldn’t even try.

[Updated 30 January 2011: Here’s a list of ad-hoc meshing protocols that might serve as a basis for making a top-down shutdown impossible.]