How a century-old law could be used to assert presidential control over mass communications

President Donald Trump’s actions in his second term have prompted some to question the limits of executive power. One area that’s largely flown under the radar is presidential authority over mass communications during times of war or national emergency.

The Communications Act of 1934 may be best known for establishing the Federal Communications Commission, but it also contains a little-known provision that could, in theory, grant the president sweeping control over media under certain circumstances.

Matthew Conaty, Harvard law graduate and current doctoral candidate at the University of Pennsylvania, has written a research paper examining the historical and legal implications of this executive power. He joined GBH’s All Things Considered host Arun Rath to share more about the largely overlooked section 706(a) of the Communications Act. What follows is a lightly edited transcript.

Arun Rath: This is a very old law. It’s really like the broadcast law, going back to 1934. Take us back to 1934 — the circumstances that led to the act and section 706(a).

Matthew Conaty: Sure. The Communications Act of 1934 was an attempt by Congress to centralize regulatory power over the then-new technologies of radio and telephone. It invested, as you mentioned, the Federal Communications Commission with oversight of these technologies, whether it was licensing or providing for the buildout of various wires and radio stations.

Section 706 actually goes back earlier than that. It actually precedes the first World War and has its roots in a statute that allowed the president to control physical traffic — cargo, for example — in times of national emergency or war.

Section 706(a) says that during the continuance of a war in which the United States is engaged, the president, in his sole and exclusive judgment, is empowered to grant “preference or priority” over telecommunications traffic — as in his judgment may be essential to the national defense and security.

Rath: We’ve had wars and national emergencies since then. Has any president ever invoked this authority?

Conaty: No, and that’s one of the most interesting things about the statute. As with several other provisions of the Communications Act, it’s been in there for nearly 100 years and has been largely forgotten about.

It was invoked in World War I [before it was codified in 1934], which is really the crux of my paper in terms of trying to analyze how the courts would interpret the statute in the 21st century. But since then, except for a few sporadic cases, it has not been invoked.

I should say that each president — including the Obama and first Trump administration — did make it a part of their continuity of government planning. So in the case of a truly nationwide disaster, this statute was included as one of the powers they can draw upon to restore public order, for example.

But, in a practical sense, no. It’s really sat on the books and has been unexamined and relatively unused up to the state.

Rath: You’ve written about your concerns about potential misuse of this law, especially considering the broad definitions of war and national emergency, and we’ve obviously seen national emergency invoked in a number of ways. Talk about that in the context of this current political environment.

Conaty: Certainly. You know, it’s striking. When I began writing the paper, it was wholly speculative. You know, I was trying to game out different scenarios, thinking about how this might be used in an illiberal context but in a very longitudinal sense.

As you mentioned, over the past few months, we’ve seen a real invocation of these terms. I think that most individuals will probably be familiar with President Trump’s invocation of the Alien Enemies Act of 1798, seeking to deport Venezuelan migrants under a law that is ostensibly reserved for times when the country is actually at war — has declared war on another country — which, of course, we have not to date [declared war] on Venezuela.

Another example is the question of whether Mexican drug cartels are the equivalent of terrorists for purposes of levying economic sanctions on them. We saw the president attempt to refuse money that had been allocated for various regulatory agencies in December of last year, saying that, in his mind, it didn’t meet the definition of an emergency, despite Congress having allocated funds specifically for such an emergency.

These terms — “war,” “national emergency” — they really are quite fluid. There is no real set definition of these terms, and the drafters of these statutes really left it up to the president to determine when the nation is in a war [and] what rises to the level of a national emergency.

This is obviously very troubling. We don’t want one individual using this statute, declaring emergencies for possibly undemocratic aims or even for personal gain. In my opinion, there is a strong possibility of this, given the fact that these terms are left undefined in section 706.

Rath: Do you have any sense of how far those presidential powers could extend? Could it go beyond broadcast media? Because now, digital media is another delivery method.

Conaty: I do think that this statute could be read to encompass certain forms of digital media. The statute used the term “carrier” or “common carrier,” which traditionally was understood back in 1934 to refer to telephone companies — most notably the AT&T Bell System.

Since then, we’ve seen an expansion of that term. Over the past 10 years, various iterations of the FCC have been attempting to codify the doctrine of net neutrality. Under this particular doctrine, it would reclassify internet service providers as common carriers.

These are very broad terms — like “carrier,” for example, or “radio station.” These terms are so broad, and they have taken on such additional meanings beyond what the drafters of the statutes of the Communications Act of 1934 had in mind, back nearly 100 years ago, that is potentially extremely expansive, possibly even invasive into the technologies that we rely upon today.

Rath: Matthew, is there any movement towards reforming this law? Or, on this right now, are you kind of a voice in the wilderness?

Conaty: I am not aware of any voice. There has been scholarship, very important scholarship, done on this particular statute on sort of its broader implications. But that was 10, 15 years ago, when Congress was considering the possibility of a so-called “internet kill switch,” which would have given the president the power to essentially shut down the entire internet with the push of a button.

That movement — that particular legislative initiative — was, thankfully, shut down at that time. But since then, there really hasn’t been a re-examination of this.

Given all the sort of re-examination we’re seeing by the current administration ... of these particular statutes that have been on the books for so long and really lack judicial guidance in the modern age, I’m hoping that my research and those of others will draw attention not just to section 706(a) but to similar statutes as well to protect them from abuse and protect them from being used towards an illiberal end.