Ridiculous 'Terrorist Reporting' Provision In Intelligence Authorization Would Undermine The First Amendment

from the don't-let-it-pass dept

A few weeks ago, we wrote about a troubling provision that the Senate Intelligence Committee had inserted into this year’s intelligence authorization bill, which would require social networks to report to the government any “terrorist activity” they see on their systems. As we noted, this has all sorts of problems, and seems more designed to (1) generate headlines and (2) chill free speech than do anything useful. Thankfully, Senator Ron Wyden has put a hold on the bill specifically over this provision.

?There is no question that tracking terrorist activity and preventing online terrorist recruitment should be top priorities for law enforcement and intelligence agencies,? Wyden said, in a statement for the record today. ?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,?Wyden continued.

But the issue goes even deeper than that. As Markham Erickson has written, there are significant free speech concerns raised by this provision, in large part because “terrorist activity” is not defined at all. Anywhere. It’s just this vague term — and given that companies may face liability for not reporting “terrorist activity” to the government, you can bet an awful lot of perfectly fine and protected speech is going to get reported. And that’s worrisome.

A key problem with Section 603, however, is that the trigger for the reporting mandate is based on the vague and undefined term ?terrorist activity.? This term is not a term of art in the US criminal code and arguably goes well beyond criminal activity to speech that is protected under the First Amendment.

Erickson also points out that the comparison that supporters have made of this bill to one that requires companies to report child porn, is that child porn is “per se unlawful and never protected speech” under the US Constitution. But “terrorist activity” is just vague.

The NCMEC reporting obligations, however, relate to images that are per se unlawful and are never protected speech under the US Constitution. A government mandate that an Internet company report facts and circumstances connected to the vague and overbroad term ?terrorist activity? certainly would result in overbroad reporting to the government of speech that is protected under the First Amendment.

And, on top of that, this move would give other countries a blueprint for how to demand tech companies hand over information on users:

More troubling, if adopted, the provision would serve as a global template for other countries to impose reporting requirements for activities those jurisdictions deem unlawful. This would be particularly problematic with countries that regulate speech, including political speech, and with authoritarian regimes that would demand that Internet companies police their citizens? activities.

And, finally, as noted, with such a vague term, and the threat of serious liability, companies are going to be pressured into serious over-reporting:

Section 603 also creates a practical compliance problem. Because no one knows the definition of ?terrorist activity,? how does one counsel a client to establish a compliance protocol under the proposal?

Any company would be at risk that if it did not report ?terrorist activity,? it could be liable if there were a subsequent event that resulted in loss of life, limb, or property. Likely, this would result in designing a protocol to over-report anything that could be considered ?terrorist activity.? Given the massive scale of content shared and created on the Internet daily, this would result in reporting of items that are not likely to be of material concern to public safety and would create a ?needle in the haystack? problem for law enforcement. This serves no one?s purposes and adds privacy concerns to the First Amendment concerns noted above.

This creates a perverse incentive for a company to avoid obtaining knowledge of any activity that would trigger the reporting requirement?the exact opposite of what the proponents of the legislation want. Yet, designing such an avoidance protocol is nearly impossible. If even one low-level employee received an over-the-transom email about a ?terrorist activity,? knowledge of the activity can be imputed to the entire company ? exacerbating the potential liability faced by an Internet company.

Of course, these days, it seems like most in the Senate go by headlines rather than actual understanding of the issues. Hopefully, at least this one time, they’ll actually listen to Senator Wyden.

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Comments on “Ridiculous 'Terrorist Reporting' Provision In Intelligence Authorization Would Undermine The First Amendment”

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That One Guy (profile) says:

Careful what you demand...

If it wouldn’t do so much damage, I would almost hope that it did pass, because the perfect form of protest against it is so obvious, and would be hilarious.

If they’re not going to define ‘terrorist activity’, then companies/sites would just need to report everything. Every post, every comment, every reply, every single thing. New ad showing up? Report it. Someone makes a comment? Report it. Someone replies to that comment? Report it. Cat picture? Report it? Funny video? Report it.

Forget ‘needle in a haystack’, watching them be forced to sift through basically every website in or available in the US would be all sorts of funny.

Roger Strong (profile) says:

Re: Re: Careful what you demand...

Sure they can. They can REdefine it as “Shock and Awe.”

The term was used heavily after the air raid on Baghdad on March 21, 2003. The presidential palace compound and key government buildings in the center of the city destroyed. Giant fireballs and deafening explosions and huge mushroom clouds rising above the city.

Terrorizing people doesn’t make people friendly towards you. Instead you bomb their cities in a way that’s shockingly awesome, and they’ll welcome you as liberators.

Bergman (profile) says:

Re: Careful what you demand...

Personally, I feel deeply frightened by how Congress generally doesn’t fully read bills before it passes legislation, to the extent it influences my political choices, including how I vote in elections.

By the US Code definition of terrorism, if this law passes I’d need to report most of Congress for ‘terrorist activities’.

Frre2aeA says:

“terrorist activity” is not defined at all. Anywhere.

The profile for “terrorists” will be secretly shared with the conscripted/collaborating US companies, accompanied by an gag order.

It will involve things like using the words “corrupt” and “government” in the same sentence, mentioning piracy, mentioning Wikileaks, mentioning Kimdotcom,
suggesting Snowden is not a traitor etc.

Bergman (profile) says:

Re: Re:

While ‘terrorist activities’ isn’t defined, terrorism (both domestic and international) IS defined in the US Code.

Basically, it’s any violent or threatening act that influences political choices. But by making the definition of what must be reported so vague, extending it to other things than violence or actual threats, any time you feel uneasy about something, you could report it as terrorist activities.

That would include politicians, even Congress itself. Feel uneasy about the TPP being Fast Tracked? If that unease inclines you to vote against the Senator or Representative that voted for it, then your political choices have been influenced, so you need to report that Congresscritter for domestic terrorist activities!

Anonymous Coward says:

Re: Re:

You are wrong, because as soon as you make it mandatory, rather than leaving it as something that people do when they have concerns, you have something that the government can measure. This will result in people being reported so that companies can fulfil their quota, and government departments justify their existence.

New Mexico Mark says:

Re: Re:

Conscripting non-LEOs to do law-enforcement work is usually a bad idea, regardless of the activity. A few years ago I had a conversation with a police officer who did some specialty vice work. While child porn is reprehensible, I had to ask how a LEO can reliably differentiate a nude 16 year-old vs. 18 year-old. (This relates to cyber forensics, which is part of my field.)

She admitted that borderline cases are a real problem, and their general guideline is “hair down there” (which raised a lot of other unasked questions regarding precocious development, personal hygiene choices, etc.).

The point is that something seemingly unambiguous as child pornography can present challenges, even for law enforcement professionals, to say nothing about Joe Citizen. How much more something like “terrorism” where we seem to be lumping just about everything these days when it is convenient for prosecutorial overreach.

Furthermore, law enforcement can (ideally) decide whether or not to pursue questionable cases when they discover things themselves. But when something is reported to law enforcement from an external source, it may be harder to dismiss borderline cases. In other words, the burden will be to prove innocence rather than guilt.

The scariest part about bills like this is how few of our “leaders” exercise any level of critical thinking when evaluating them. There should have been dozens of senators asking some really hard questions and pointing out the obvious weaknesses of this proposal. If this happened regularly, there would be less of a tendency to put ridiculous proposals into bills in the first place.

Bergman (profile) says:

Re: Re: Re:

I’ve heard people seriously claim that Republicans in Congress voting against the President’s agenda (as they were elected to do) is terrorism and/or treason.

People call 911 to report that someone stole their illegal drugs.

Given how vaguely defined ‘terrorist activities’ are, I have no doubt people will soon be reporting even the most minor disagreement as terrorism.

Capt ICE Enforcer says:

Ron Wyden

I know this may sound stupid. But Ron Wyden is actually inspirational to me. He actually appears to take his oath seriously, and seems to actually care about the ideals of this nation and it’s citizens. He makes me want to try politics so that I can follow his suit.

Thank you Mr. Wyden..

Capt ICE Enforcer.

Anonymous Coward says:

Re: Ron Wyden

Agreed. But, at the same time, his “inspirational” work is incredibly depressing. The fact that a member of congress complying with his oath of office and simply doing the job he was elected to do elevates him to “hero” status says just as much about the rest of our elected representatives as it does about Senator Wyden.

GEMont says:

Re: Ron Wyden

A single apple can cure a spoiled bushel.

You may indeed enter the lofty halls of American politics with the best of intentions, but if you are caught thereafter doing good deeds for anyone but your fellow politicians and their favorite corporate sponsors, you will wake up one morning from a drug induced stupor, with 3, smiling, under-aged, female, AIDS-ridden hookers, draped over you, and fifteen reporters leaning over the bed snapping pictures of your naked, sweaty bodies.

Its pretty much standard operational procedure these days, because the Programmed Morality of American Citizens makes child sex a far greater crime than stealing millions of dollars, murdering a dozen adults and lying under oath combined, and is the absolutely guaranteed best way to end your political career permanently.

While Wyden obviously wins the most honest politician of the year award (a single truth spoken once will win that award), the fact that he still retains his job means that he either holds a portfolio of all the misdeeds of his fellows in some secret place, or that he is a crony with a penchant for popularity gained by fooling the masses through the occasional release of common sense statements that never actually name names.

GEMont (profile) says:

Re: Re: Ron Wyden

Now really folks.
Where went your fabled integrity?

What the hell was in this post that made it fodder for the Censor Bot, and caused it to be held back for two full days??

Was it really the existence of the words “child sex”??

Explain yourself.

You are always talking about how an informed public is an absolute necessity to the making of correct decisions.

Tell me what the hell was in that post that triggered the Mod-Bot, and I (and possibly others) will do my (our) damnedest in future to avoid using those words, (or not) – even if it does mean that I (we) would then be capitulating to free-speech-stifling censorship.

If however, the post was tagged by some childish human that you have employed as a moderator on weekends, who simply wanted to piss me off, then you may simply ignore this post as it will make no difference if I am informed or not, because the twit will just keep on doing his thing anyway.

Monday (profile) says:

Terrorist? Blacklisted for awhile...

When I was first attending University, I wanted to do one thing. Work for NASA… the second was to work in Exobiology. Neither happened, but I still studied Astronomy and Biology.
I was absolutely fascinated with Spiders and Snakes, and anything else that had an overwhelming poison arsenal, because I could see then – that was way before documentaries started popping up – that this was a field to be reckoned with, and I was right.
BUT! and that’s a big but, my University had me on a watch list that I never knew about until after I was finished. They “watched” me because of my fascination with poisons, narrow minded fux, and poisonous creatures. I mean, I asked alot of questions in lectures over my years, asked for materials through the Campus Library that were ‘extra-ordinary’, but I always thought about the implications of those poisonous animals.

That was a University. Imagine now, having reports made by some College grad – a BA or BSc where “… the trigger for the reporting mandate is based on the vague and undefined term ‘terrorist activity’.”

This isn’t a slippery slope argument. This is the trigger for unchecked biased judgment calls. Next stop, Search Engines…

GEMont (profile) says:

Re: Re:

The Police State doesn’t care about the U.S. Constitution.

And rightly so, since it no longer exists in the form that American citizens are familiar with and hasn’t since 9/11, when the government of the US gave itself the power to reinterpret the words therein, because….. Terrorists!!

The way it is interpreted now, pretty much insures that the Police State needs not worry about it at all, as the new secret government version, now supports fascism, rather than democracy and gives the Police State all the Secret War-Condition Legal Powers it needs to turn the USA and eventually, the world, into its members’ personal bank account, while American citizens argue over whether or not billionaires are smart enough to tie their own shoes.

If the situation were not so dire, it would indeed be stunningly comical.

Stephen says:

Why Stop at Social Networks?

A few weeks ago, we wrote about a troubling provision that the Senate Intelligence Committee had inserted into this year’s intelligence authorization bill, which would require social networks to report to the government any “terrorist activity” they see on their systems.

This is indeed a worrying development.

First of all what this provision is essentially asking social networks like Facebook and Twitter to do is spy on their users.

And unless the government expects an army of moderators to read every post, by imposing this requirement they will be spurring development of software to do the spying automatically.

Secondly, if the move does proceed it will probably not stop at social networks. The next cab off the ranks will probably be email providers. After all, most if not all of those already have quasi-spy software operating on their systems–to detect spam. However, I can see the argument being put that it should not take too much tweaking to have that same safeware look for “terrorist activity” instead.

After that expect to see school teachers being required to report suspicious activity/conversations among their students–all in the name of stopping would-be ISIS recruits. After all, it will doubtless be argued, teachers are already required to look for suspected child abuse cases, so it should not take too much tweaking to have them keep an eye out for would-be terrorist sympathisers as well.

And since all this spying will only serve to drive suspects off social networks, and away from email and school classrooms and playgrounds, when they discuss their suspicious activities, the next step will doubtless be to have (say) coffee shop owners and bar proprietors also keep a weather eye out for terrorist sorts frequenting their haunts. (And perhaps install microphones to accompany the CC cameras such places tend to have nowadays in these much-surveilled times.)

And when governments find they are not catching as many evildoers as they would like (because such sorts are all being driven away from coffee shops and bars too)…well, can the day be far off when American hotel rooms will be required to have CC cameras and microphones. All in the name of a worthy cause, of course: of keeping Americans safe.

In other words, this proposed provision has all the hallmarks of being the start of a slippery, Orwellian slope!

GEMont (profile) says:

Nothing to worry about. Everything is under control. Go back to Sleep.

In other words, this proposed provision has all the hallmarks of being the start of a slippery, Orwellian slope!

But because there is not now, and never has been, such a thing as a “conspiracy” and because American billionaire industrialists, drug lords, financiers and businessmen, like American millionaire lawyers and politicians, are simply way too incompetent and stupid to actually plan and execute anything remotely like a conspiracy, without the ever-watchful and intuitively intelligent US Joe Six-pack catching them in the act, all of these proposed provisions, just like all the other past and future changes to American law, such as those that are coming to a city near you through the Fast Tracked “copyright trade deals”, is all just purely an amazing coincidence and the Boys in Power really for really did not mean to introduce legislation that would undermine the whole concept of American democracy, on purpose.


It just looks that way because of all them Anti-Vaxxers and 911 Truthers, and the ever-growing army of Conspiracy Nutters and their unending wringing of hands, over impossible authoritarian-fascist fantasies.

GEMont (profile) says:

Re: Re: Re:2 Held for moderation

I’d love to hear from the techdirt staff as to precisely why my posts are being selected for moderation as well.

This last one was not even really controversial, or rude, or anything I’d expect to cause censorial alarm.

All I said was that Wyden was either holding a ton of embarrassing documentation on all the assholes in power above him, or he was just another Crony, but with a need for popularity (the good cop), so he publicly posed what I would think to be simple common sense assertions about the security state, but without ever actually naming names, in order to convince the easily convincible that he was a good guy.

Otherwise, I can’t see as how he’d keep his job, or avoid the “accidental vehicular momentum termination” clause in his Crook Contract, which is pretty much standard payback for rocking the boat these days.

You know, the usual stuff.

If I knew what was freaking out the morality sensors, I could alter my prose to avoid such unwanted attention, or at the very least, not use those particular words that trigger the piglet.

If its a human being, on the other hand, I hope his/her children live in interesting times.

GEMont (profile) says:

Re: Re: Re:3 Held for moderation

It appears that I may have to ask the techdirt staff to explain the reason for my posts being held for moderation, via private email, as it appears that whatever the reason might be, it is not “suitable” for general public disclosure here in the posts section.

I suppose that’s understandable – probably considered as “off topic”, no doubt.

C’est la vie eh.

This should prove interesting.

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