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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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  • icon
    That One Guy (profile), 31 Jul 2015 @ 5:51pm

    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.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Jul 2015 @ 9:41pm

      Re: Careful what you demand...

      The US Government can't define terrorism without also being guilty of it themselves. That's why it's intentionally vague.

      reply to this | link to this | view in chronology ]

      • icon
        Roger Strong (profile), 1 Aug 2015 @ 8:59am

        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.

        reply to this | link to this | view in chronology ]

    • identicon
      Someantimalwareguy, 1 Aug 2015 @ 5:30am

      Re: Careful what you demand...

      "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."

      Well, isn't that simply using the Google?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Aug 2015 @ 3:17pm

      Re: Careful what you demand...

      So how is that any different from what the NSA already does? The obedience training in the reporting requirements?

      reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 1 Aug 2015 @ 5:43pm

      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'.

      reply to this | link to this | view in chronology ]

  • icon
    Sheogorath (profile), 31 Jul 2015 @ 8:16pm

    Uh, what First Amendment?

    reply to this | link to this | view in chronology ]

  • icon
    BearGriz72 (profile), 31 Jul 2015 @ 8:34pm

    Wyden FTW Again!

    Oregon Rules!
    lol ;-)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Jul 2015 @ 9:05pm

    The word terrorism has no meaning other than propaganda speech used to slander one's opponent.

    reply to this | link to this | view in chronology ]

  • identicon
    Frre2aeA, 31 Jul 2015 @ 9:56pm

    "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.

    reply to this | link to this | view in chronology ]

    • icon
      Sheogorath (profile), 31 Jul 2015 @ 10:38pm

      Re:

      So I'mma talk about government agencies that are tasked with investigating corrupt activities and you can report me, 'kay?

      reply to this | link to this | view in chronology ]

    • icon
      Coyne Tibbets (profile), 1 Aug 2015 @ 11:01am

      Re:

      It's generally been made clear enough by the government and media today, and it's simple: Just report anything done by Muslims or PETA.

      Everything else is not terrorism.

      reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 1 Aug 2015 @ 5:48pm

      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!

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Jul 2015 @ 10:12pm

    It's not a bad idea to have some reporting requirements similar to mandatory child abuse reporting, but I agree the term needs to be well defined so everything isn't a terrorist.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Aug 2015 @ 1:11am

      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.

      reply to this | link to this | view in chronology ]

    • identicon
      New Mexico Mark, 1 Aug 2015 @ 4:52am

      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.

      reply to this | link to this | view in chronology ]

      • icon
        Bergman (profile), 1 Aug 2015 @ 6:10pm

        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.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 1 Aug 2015 @ 9:01pm

          Re: Re: Re:

          You don't vote people in just to vote against others. You vote people in whose agendas match with your own desires for the direction of the country. 'I don't like the president, so I'm going to vote this jackhole in' is a pretty shitty way to vote.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 2 Aug 2015 @ 7:11am

          Re: Re: Re:

          I've heard people seriously claim that Republicans in Congress voting to destroy this country is terrorism and/or treason.

          ftfy

          reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 31 Jul 2015 @ 11:06pm

    They can't even clearly articulate they have been visited by lobbyist, but they want these companies to report on subjective things?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Aug 2015 @ 12:27am

    > Hopefully, at least this one time, they'll actually listen to Senator Wyden.


    I love the optimism of this site.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Aug 2015 @ 3:27am

    considering the US government calls terrorism anyone that doesn't bow down to them.

    Protesting = terrorism

    criticizing the government = terrorism

    questioning the US leaders = terrorism

    whistleblowing = terrorism

    etc

    reply to this | link to this | view in chronology ]

  • identicon
    Capt ICE Enforcer, 1 Aug 2015 @ 6:11am

    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.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Aug 2015 @ 12:47pm

      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.

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 1 Aug 2015 @ 4:24pm

      Re: Ron Wyden

      I used to feel that way, until he sold out the public regarding the 'trade' deal by voting for FTA. Now I see him as just another politician, who cares about what benefits him first and foremost, and if that happens to score him some PR points with the public by making it look like he cares, then all the better.

      reply to this | link to this | view in chronology ]

    • identicon
      GEMont, 2 Aug 2015 @ 10:12am

      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.

      ---

      reply to this | link to this | view in chronology ]

      • identicon
        GEMont, 3 Aug 2015 @ 3:30pm

        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.

        ---

        reply to this | link to this | view in chronology ]

        • identicon
          GEMont, 4 Aug 2015 @ 11:43am

          Re: Re: Re: Ron Wyden

          So far, it appears that the moderator was indeed human, as I've received no response from techdirt staff on this matter in private email and no response here on the blog concerning this censorship.

          Interesting.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Anonymous Coward, 1 Aug 2015 @ 7:32am

    Easy

    Sounds like this would be easy, just program the report button to send a notice at the same time the reported comment gets reduced to dust.....oh....wait!

    reply to this | link to this | view in chronology ]

  • icon
    Monday (profile), 1 Aug 2015 @ 9:20am

    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...

    reply to this | link to this | view in chronology ]

  • icon
    got_runs? (profile), 1 Aug 2015 @ 9:30am

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

    reply to this | link to this | view in chronology ]

    • identicon
      GEMont, 2 Aug 2015 @ 9:51am

      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.

      ---

      reply to this | link to this | view in chronology ]

  • identicon
    Stephen, 2 Aug 2015 @ 9:10am

    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!

    reply to this | link to this | view in chronology ]

  • identicon
    GEMont, 2 Aug 2015 @ 9:39am

    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.

    Honest!

    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.

    ---

    reply to this | link to this | view in chronology ]

  • identicon
    GEMont, 2 Aug 2015 @ 10:15am

    Held for moderation

    Wow!

    Once again a post has been tabled for Moderator Review!

    Looks like things here they are a-changing....

    reply to this | link to this | view in chronology ]

  • identicon
    GEMont, 2 Aug 2015 @ 10:15am

    Held for moderation

    Wow!

    Once again a post has been tabled for Moderator Review!

    Looks like things here they are a-changing....

    reply to this | link to this | view in chronology ]

    • identicon
      GEMont, 2 Aug 2015 @ 10:17am

      Re: Held for moderation

      Now why would that last post print out twice??
      Strange days these.

      reply to this | link to this | view in chronology ]

      • identicon
        GEMont, 2 Aug 2015 @ 10:20am

        Re: Re: Held for moderation

        I'm guessing that my comment about Wyden was held back for moderation because it contained the keyowrd "child".

        That's the only similarity with the post that was held back for moderation last weekend.

        Either that, or its not a bot. :)

        ---

        reply to this | link to this | view in chronology ]

        • icon
          Monday (profile), 2 Aug 2015 @ 10:31am

          Re: Re: Re: Held for moderation

          If a Mod is reading this, I would like very much to read this opinion. Please do not babysit me.

          Thank-u

          reply to this | link to this | view in chronology ]

          • identicon
            GEMont, 2 Aug 2015 @ 11:10pm

            Re: Re: Re: Re: 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.

            ---

            reply to this | link to this | view in chronology ]

            • identicon
              GEMont, 3 Aug 2015 @ 3:51pm

              Re: Re: Re: Re: Re: 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.

              ---

              reply to this | link to this | view in chronology ]


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