Century-Old Law Could Result in Concerning Executive Control Over Mass Communications

In June 1934, President Franklin D. Roosevelt signed the Communications Act of 1934, a landmark law establishing the legal and regulatory framework for telecommunications in the United States.

Nearly a century later, research from Matthew L. Conaty, a former civil servant and doctoral candidate at the Annenberg School for Communication at the University of Pennsylvania, highlights the law's potential ramifications in the age of mobile communications networks, data centers, and social media. His new paper examines Section 706(a), a subsection regarding presidential authority to regulate telecommunications during times of war or national emergency.

The subsection grants the U.S. President the power to prioritize specific communication channels over others during times of crisis. In the age of the internet, that could consist of making specific social networks harder to access or slowing service to particular news sites, he argues.

Though Section 706(a) has been used in “seemingly innocuous” ways since its introduction, Conaty believes it is still open to misuse and politicization — or even weaponization. His study argues that the subsection’s broad language, vague definition of “war,” and lack of meaningful oversight could pave the way for executive overreach in times of crisis.

“Section 706(a) empowers the President to direct communications carriers to prioritize certain types of traffic for national defense and security,” explains Conaty. “While this may seem straightforward, the statute fails to provide clear definitions or limits on what constitutes a war or emergency, leaving it vulnerable to abuse.”

Ambiguity Around the Definition of “War”

Conaty, who formerly served as Chief Counsel for Voice of America and Chief of the Spectrum Enforcement Division at the Federal Communications Commission, came to Annenberg with a vested interest in examining the impact of federal policymaking on sociotechnical systems. His dissertation grapples with the underexamined history and uncertain future of the Emergency Alert System, a disaster communications system conceived during the height of the Cold War.

He notes that the undefined use of “war” in Section 706(a) is typical of many laws that entrust the chief executive with both defining and ameliorating a national security crisis. The term could be extended to a variety of conflicts – Congressionally declared wars, “police actions” and special operations, and even conflicts in cyberspace. In permitting the chief executive to determine what constitutes “times of war or national emergency,” the president is free to use Section 706(a) for his or her own interests, whether publicly minded or for private gain.

Barriers to Judicial Review

Another key weakness of Section 706(a), Conaty argues, is that there is no clear path for telecommunication carriers to challenge presidential actions carried out in its name.

Judicial review of executive wartime actions has historically been limited, particularly when Congress has explicitly or implicitly granted authority, he writes.

“When a President’s actions are framed as essential to national security, the courts are likely to defer to the President’s judgment, which effectively places the President’s wartime communications powers beyond the reach of the judiciary,” Conaty says. “Given the historical and legal precedents, which emerged in the 1950s, it’s possible to see how a future President—and even President Trump—could use Section 706(a) to limit the dissemination of information under the guise of crisis management. This could fuel even more distrust towards democratic institutions.”

A Call for Legislative Reform

To address the vulnerabilities of Section 706(a), Conaty advocates for a comprehensive revision of the subsection.

His proposed reforms include clearer definitions of the terms “war” and “national emergency,” strict time limits on any government control over communications, and mechanisms for judicial and congressional oversight.

“The Communications Act of 1934 was written in a different era, but its emergency powers remain in force today,” Conaty says. “It’s imperative that we revisit these statutes to ensure they are not weaponized against democratic freedoms in a time of crisis. Making these laws legible to the public is also important so they can have a voice in amending them.”

“Preferred or Prioritized: Probing the Limits of Presidential War Powers Under Section 706(a) of the Communications Act of 1934” was authored by Matthew L. Conaty and published in the Federal Communications Law Journal.