Congressional Reps Targeting Homegrown Terrorism Are Pushing A Bill That Would Allow Congress To Subpoena Citizens' Communications

from the hey-internet-rando,-the-government-wants-to-know-what-you've-been-talking-ab dept

In the name of securing the homeland, Congressional reps are tossing around the idea of regulating online speech. This isn't the first effort of its type. There's always someone on Capitol Hill who believes the nation would be safer if the First Amendment didn't cover quite so much speech. But this latest effort is coming directly from the Congressional committee that oversees homeland security efforts, as the Hill reports.

Civil liberties and technology groups have been sharply critical of a draft bill from House Homeland Security Committee Democrats on dealing with online extremism, saying it would violate First Amendment rights and could result in the surveillance of vulnerable communities.

The whole thing sounds a bit innocuous. At first. The bill would create a bipartisan commission to develop recommendations for Congress to address online extremism. The committee would have to balance these recommendations with existing speech protections. But it's easy to see how certain inalienable rights will become more alienable if this committee decides national security interests are more important than the rights of the people it's securing.

When you get into the details, you begin to see how this isn't really about making Congress do more to address the problem. It's about regulating online speech via Congressional action. The end result will be censorship. And self-censorship in response to the chilling effect.

The government-appointed body would be given the power to subpoena communications, a sticking point that raised red flags for First Amendment advocates concerned about government surveillance.

A source familiar with the legislation told The Hill they were immediately concerned that the subpoena power could be abused, questioning whether it would unintentionally create another avenue for the government to obtain private conversations on social media between Americans.

The draft bill would require companies to "make reasonable efforts" to remove any personally identifiable information from any communications they handed over. But that provision has not satisfied tech and privacy groups.

This isn't about moderating public posts on social media platforms. It will likely end up affecting those eventually, but the draft bill appears to allow the committee to target personal communications, which are usually private. Whether or not there are robust protections in place to strip identifying info doesn't really matter. A Congressional committee with the power to subpoena the communications of people not actually under investigation by the committee isn't the sort of thing anyone should be encouraging, no matter the rationale.

Social media platforms have been doing more to address concerns of online radicalization, but their efforts never seem to satisfy political leaders. The efforts have routinely resulted in collateral damage, not the least of which is the removal of evidence of criminal activity from the internet.

Moderation at scale is impossible. The imperfections of algorithms, combined with the human flaws of the thousands of moderators employed by social media platforms, has turned online moderation into a mess that satisfies no one and does harm to free speech protections. Any Congressional rep with the ability to perform a perfunctory social media search can find something to wave around in hearings about online radicalization and internet companies' unwillingness to clean up the web. It doesn't mean they're right. It just shows it's impossible to satisfy everyone.

In this case, the Congressional committee appears to be targeting white nationalist extremists. Just because the target has shifted to homegrown threats doesn't make the proposal any less dangerous. Even if it never results in the subpoenaed harvesting of communications, it could still encourage the federal government (and the local agencies that work with it) to expand existing social media monitoring programs. These also utilize imperfect AI and flawed humans. And they will also result in the over-policing of content. Unfortunately, these efforts will utilize actual police, so it's not just the First Amendment being threatened.

Filed Under: 4th amendment, communications, congress, moral panic, online extremism, privacy, subpoenas, terrorism


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  1. icon
    James Burkhardt (profile), 18 Oct 2019 @ 2:00pm

    Re: Re: Re:

    The judicial branch responds to the cases laid out before it. They do not proactively seek to judge the behavior of government, they mediate the disputes of the application of law, and that includes the constitutionality of laws. Courts require jurisdiction to act, and within the rules of procedure, will hear a legal case only if the plaintiff has "standing". In criminal Law this means the prosecutor needs to allege a statutory crime has occurred. In civil law this means the plaintiff needs to establish they are impacted by the actions of another, and that those actions are a tort and that the court can provide a relief or remedy of that tortuous action. In the case of challenging legislation, that involves showing that you either are affected or can reasonably assume you will be affected by the legislation, and assert constitutional deficiency with that legislation. A court will not, under the current rules of civil proceedure, hear a case without standing. This is unlikely to change, as it is believed that those who have a stake in overturning the law are those with standing and that those without standing are wasting the courts time. The standing rule ensures that those who have something at stake and therefore theoretically will present the best case are the ones who actually get the court's time.

    The legislative branch needs to be able to investigate the reality of how laws are functioning to draft legislation. This has long been enshrined in Common Law, and is the reason Congress can issue subpoenas at all. I would assume the bill is required because access to communications content has a warrant requirement to be accessed by the executiv, and the assumption is they would need similarly specialized authority to access. It is however a silly move given the goal is the restriction of speech, an area the Supreme Court has been highly protective of in the last 30 years.


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