Earlier this year, Senator Diane Feinstein (D-CA) inserted language into the annual Intelligence Authorization bill that would have forced social media companies like Twitter to act as de facto law enforcement agents and censors of the users of their service. The language in question read as follows:
(a) Duty To report.—Whoever, while engaged in providing an electronic communication service or a remote computing service to the public through a facility or means of interstate or foreign commerce, obtains actual knowledge of any terrorist activity, including the facts or circumstances described in subsection (c) shall, as soon as reasonably possible, provide to the appropriate authorities the facts or circumstances of the alleged terrorist activities.
(b) Attorney General determination.—The Attorney General shall determine the appropriate authorities under subsection (a).
(c) Facts or circumstances.—The facts or circumstances described in this subsection, include any facts or circumstances from which there is an apparent violation of section 842(p) of title 18, United States Code, that involves distribution of information relating to explosives, destructive devices, and weapons of mass destruction.
(1) to monitor any user, subscriber, or customer of that provider; or
(2) to monitor the content of any communication of any person described in paragraph (1).
In a social media context, what constitutes "terrorist activity"? And how would a social media company "obtain knowledge" of undefined "terrorist activity" absent active monitoring of all of is users?
Feinstein's proposal was constitutionally dubious and wildly impractical. It also generated strong opposition from social media and tech companies, the privacy and civil liberties community, and some of her own Senate colleagues.
In placing a hold on the bill after the Feinstein language surfaced, Senator Ron Wyden (D-OR) noted
“There is no question that tracking terrorist activity and preventing online terrorist recruitment should be top priorities for law enforcement and intelligence agencies. But I haven’t yet heard any law enforcement or intelligence agencies suggest that this provision will actually help catch terrorists, and I take the concerns that have been raised about its breadth and vagueness seriously. Internet companies should not be subject to broad requirements to police the speech of their users.”
Earlier this week, Wyden won the fight, as Feinstein agreed to drop the language--for now.
Feinstein spokesman Tom Mentzer told NextGov “Sen. Feinstein still believes it’s important to block terrorists’ use of social media to recruit and incite violence and will continue to work on achieving that goal."
In truth, if Feinstein got her way and social media companies managed to achiece the complete blocking of ISIS' use of U.S.-based social media--a technically and operationally dubious proposition--it would have exactly the opposite effect she seeks.
A recent Fordham Law School study shows the FBI's effectiveness in exploiting ISIS' use of social media services like Twitter to try to radicalize and recruit young Muslim-Americans to find and charge alleged ISIS militants in the United States. Most of the ISIS-related indictments or convictions obtained by the FBI to date against alleged or actual ISIS-recruited terrorists in the United States are attributable to the FBI's tracking of such activity on Twitter and other U.S.-based online services. Shutting down ISIS' access to American-run social media services would simply lead to an ISIS migration to other, non-U.S. social media and messaging platforms--very likely in countries that would be less inclinded to cooperate with U.S. government agencies seeking information on known or suspected overseas terrorists communicating with individuals in the United States. This trend may already be underway with respect to ISIS' use of encrypted messaging services.
When Members of Congress advocate censorship as a means of combating terrorist violence and propaganda, they give those same terrorists an unearned victory by sponsoring legislation that subverts the Bill of Rights. Kudos to Senator Wyden for reminding his Senate colleague of those facts.