On March 19, 2025, Turkish officials arrested Istanbul mayor Ekrem İmamoğlu and more than one hundred others as part of a purported crackdown on corruption and malfeasance. In response, thousands across the country rallied in protest, labeling İmamoğlu’s detention a “coup” by beleaguered President Recep Tayyip Erdoğan against a popular electoral rival. In an apparent attempt to restore order—the protests engendering country-wide violent clashes with police in the days that followed—Turkey sharply limited access to a variety of messaging applications and social media platforms, such as TikTok, WhatsApp, and X, effectively forestalling “the public’s ability to access information” about the unfolding crisis. The restrictions follow more than fifteen years of increasingly expansive site blocking and content moderation laws, which effectively vest control over the Internet in the executive branch.
If “violent populism” in the United States, as University of Chicago political scientist Robert Pape contends, “is likely to grow more pronounced in the years ahead,” the question presents itself: Could it happen here? Might the chief executive, in other words, follow Turkey’s example in marshaling statute and regulation to foreclose Internet access, drastically curtailing online democratic discourse and the networked public sphere?
As the Department of Government Efficiency—a presidentially decreed renaming and reestablishment of the United States Digital Service under the auspices of digital entrepreneur Elon Musk—delimits public engagement to Musk’s own social media platform, X, these questions take on an especial urgency. Centralization of government communication within a single channel, backed and bolstered by dint of exigent executive power, raises potentially grave constitutional and legal concerns.
“Necessary for the national defense and security”: Section 706 of the Communications Act
Though little used and largely forgotten, Section 706 of the Communications Act of 1934, as amended (the “Act”) accords the President a series of nebulous “war powers” over communications by wire and radio. Rooted in the Radio Act of 1912—under which broadcast licenses provided for presidential seizure or termination of radio stations “in time of war or public peril or disaster”—the authority was operationalized in World War I before being codified (and expanded) in the Act. Relegated, during the last half of the twentieth century, to continuity-of-government plans addressing nuclear confrontation with the Soviet Union, Section 706 was rediscovered during the Bush Administration, as a potentially powerful tool in waging the Global War on Terror.
Scholars have examined the implications of some provisions of Section 706 at length. Subsections (c) (which affords the President emergency rulemaking authority over “any or all stations or devices capable of emitting electromagnetic radiations”) and (d) (the aforementioned station closure or seizure power), for instance, have offered an interpretive vantage point on the wisdom of an Internet “kill switch,” like that proposed by the Cybersecurity Acts of 2009 and 2010 or used by Egyptian authorities to suppress popular dissent in 2011.
Yet Section 706’s reach is potentially far greater—and far more pernicious—than a simple binary check on Internet connectivity. Notably, subsection (a), “[d]uring the continuance of a war in which the United States is engaged,” empowers the chief executive to “direct that such communications as in his judgment may be essential to the national defense and security shall have preference or priority with any carrier.” Issued “at and for such times as he may determine”—and communicable both directly and through his subordinates, such as the Federal Communications Commission (“FCC”)—the statute immunizes recipients from civil and criminal liability in complying with them. As set forth in a recently published article by the Federal Communications Law Journal, subsection (a) portends a series of potential abuses invidious to free and open public discourse, such as the deliberate degradation of platforms and online forums deemed hostile to “the national defense and security” or the slowing of the data centers that power them.
Operationalizing emergency law
Why might Section 706(a) be prone to antidemocratic ends? First, a workable definition for “the continuance of a war” remains elusive. Caselaw, whether addressing this subsection in particular or its historical antecedent (the now-defunct 49 U.S.C. § 1(15)(d), under which the Interstate Commerce Commission, “[i]n time of war or threatened war,” was afforded license to give “preference or priority in transportation” upon certification by the president that such was “essential to the national defense and security”), is silent; legislative history also sheds little light on the temporal or functional meaning of this phrase. In a 1929 hearing on the precursor to the Act, for instance, Senator Clarence Dill remarked that while the President “has complete power any way in time of war,” the application to “peacetime and not wartime” was unclear; Army Signal Corps Major General George Owen Squier demurred in response, stating, “I should think one would have to weigh very carefully both sides.” FCC regulations are also inapposite, tautologically defining a “wartime emergency” under Section 706 as “a crisis or event which permits the exercise of the war power functions of the President under section 706.” Likewise, FCC decisions, such as 2020’s Review of Rules and Requirements For Priority Services, cast Section 706 less as a cognizable power invoked under particular conditions than as a nebulous “superseding” override of peacetime emergency preparedness regulatory frameworks.
Second, there exists a paucity of recent decisions on subsection (a)’s scope and limits. What caselaw does exist is, in the main, over a century old; the analog context from which it arose—questions of extraordinary executive authority with respect to telegraph and wireline telephone networks—renders its guidance questionable in a world awash in multimodal digital communications instrumentalities. It is, in any case, enormously deferential to the chief executive. The Supreme Court afforded the president vast authority to define “war” in 1919’s Dakota Central Telephone Co. v. South Dakota; as a challenge to its parameters “concerns not a want of power, but a mere excess or abuse of discretion in exerting a power given, it is clear that it involves considerations which are beyond the reach of judicial power.” Likewise, in Commercial Cable Co. v. Burleson, the Southern District of New York concluded that a joint resolution authorizing executive seizure and control of the nation’s telecommunications infrastructure during World War I “was to put the property at the general disposal of the President in the discharge of some of his constitutional functions, without inquiry as to the specific purposes which he might have in mind.” In one of the few decisions to directly address Section 706(a), the Korean War-era Bendix Aviation Corp. v. Federal Communications Commissiondismissed an objection to the FCC’s reclassification of radio bands for civil defense purposes absent statutorily mandated without notice-and-comment, citing “the increasing menace of the forces of communist aggression” as the basis for “the existence of a national emergency.”
Three additional factors complicate this already troublesome state of affairs. The “ethereal” quality of cyberwarfare blurs the lines between offensive and defensive actions on a dynamic, intangible battlefield; the difficulty of defining “war” when Section 706(a) is used to prosecute it is greatly magnified. Section 706(a)’s reference to “carrier” is also concerning, given the FCC’s repeated attempts to expand that term to encompass Internet access service providers, per the doctrine of net neutrality. Finally, there exists the long-standing scholarly construct of the imperial presidency, by “which enormous discretionary power to respond to national security crises and perceived dangers is concentrated in the office of the president.”
The foregoing must be adjudged in view of President Trump’s extraordinarily novel interpretations of emergency statutes in light of “imminent and growing” (or “unusual and extraordinary”) national security crises—imputing a state of wartime invasion, for instance, to deport Venezuelan gang members under the Alien Enemies Act of 1789, or labeling Mexican drug cartels, per the 2001 Authorization for the Use of Military Force, as “Foreign Terrorist Organizations” or “Specially Designated Global Terrorists” under the ambits of the Immigration and Nationality Act and the International Emergency Economic Powers Act, respectively. More broadly, the Trump administration has evinced an eagerness to locate and leverage outmoded law in the immediate interest of national security priorities—a task made easier by Section 706(a)’s consistent presence in White House emergency preparedness plans.
And President Trump himself continues to evince a predilection for adjudging the relative merits of both media outlets (deeming MSNBC, for instance, “a threat to democracy” that “shouldn’t even have a right to broadcast”) and social media (suspending timelines for TikTok’s divestiture, set forth by the Protecting Americans from Foreign Adversary Controlled Applications Act, by way of an executive order “that protects national security while saving a platform used by 170 million Americans”), by way of his own owned-and-operated platform, Truth Social.
Sealing the breach
What might be done to address this precarious status quo? Ideally, Congress would assert “formal process and weight to its Article I powers of war declaration” by cabining the statute’s potential for executive abuse. To that end, a statutory prophylactic should be constructed—narrow drawn to respect the president’s unique role as commander-in-chief, yet sufficiently comprehensive enough to redress the law’s systemic potentials for abuse.
First among these prospective fixes is a clarification of the statue’s reference to “war.” While numerous definitions abound, “war” might best be understood with explicit reference to the long-established War Powers Resolution. This congressional check on executive military powers affords, in the words of scholar Stephen L. Carter, “a logical, constitutional allocation of war powers” in adjudging actions arising from or attendant upon the president’s role as commander-in-chief.
Two other fixes to Section 706(a) are sourced from existing provisions of telecommunications law. Section 326 of the Act specifically disclaims the FCC’s “power of censorship over the radio communications or signals transmitted by any radio station” and prohibits it from imposing any “regulation or condition” that will “interfere with the right of free speech by means of radio communication.” Language of this sort could be utilized to restrain executive infringement upon rights of free expression in enhancing or slowing particular kinds of communications traffic. Section 402(b) provides licensees and permittees aggrieved by FCC action with an expedited means of judicial review by the District of Columbia Court of Appeals; adapted to Section 706(a), it might provide a counterweight to a rapid presidential reordering of national communications priorities.
Failing a statutory rewrite, courts must be prepared to act unequivocally and forthrightly—directly engaging with the construction, application, and impact of Section 706(a)’s considerable reach, a putative state of emergency notwithstanding.
Matthew L. Conaty is a doctoral candidate at the University of Pennsylvania’s Annenberg School for Communication, where he researches disaster and crisis communications systems. In addition to the FCC, his civil service includes postings as an Assistant United States Attorney and as Chief Counsel of Voice of America, the nation’s largest international broadcaster.
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