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.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 4th amendment, communications, congress, moral panic, online extremism, privacy, subpoenas, terrorism
Reader Comments
Subscribe: RSS
View by: Time | Thread
What problem are they actually trying to solve?
I mean, the levels of homegrown terrorism aren't all that high, are they? That is if we leave out the stings run by the FBI where they 'create' terrorism by coercing marginal people to do things they wouldn't do without the coercion, as well as treating every whistle blower as a terrorist.
So that leaves what? Speech they don't like? What forms do those acts of speech take? Are they complaining about the authoritarianism of our government? Are they complaining about graft in our election/lobbying system? Are they expounding on the 'wrong' religion? This list could get very, very long.
For the 'we needs to do something' crowd, there doesn't actually seem to be anything needed in this area, absent the power thingy where they don't believe their power is absolute enough.
[ link to this | view in chronology ]
Re: What problem are they actually trying to solve?
"I mean, the levels of homegrown terrorism aren't all that high, are they? "
They're an order of magnitude greater than that posed by Islamic terrorism, and look what happened to combat that. The scale of the real problem is almost irrelevant to the "do something" crowd.
[ link to this | view in chronology ]
Re: Re: What problem are they actually trying to solve?
cough 9/11 cough
[ link to this | view in chronology ]
Re: Re: Re: What problem are they actually trying to solve?
Yes, there was a horrific attack that would have been mitigated by cockpit door locks and a change in mindset (people pre-9/11 would assume a hijacker would want to land). The reaction that took place was well beyond what was necessary, and continues to cause problems for innocents to this day, even though you're statistically more likely to be killed by a Republican than a Muslim.
[ link to this | view in chronology ]
See also: the Pulse nightclub shooting, the Oklahoma City bombing, the Atlanta Olympics bombing, the Mother Emanuel shooting in Charleston, the murders of Heather Heyer and George Tiller
[ link to this | view in chronology ]
Re:
It's also important to remember that this stuff predates 9/11 by a long way. That was just the date the US realised it could also be a target.
[ link to this | view in chronology ]
Re: Re:
We're going to predate 911 huh.
Barbary pirates and white slavers!!!
[ link to this | view in chronology ]
Re: Re:
LOL I didn't mean to leave a name but I will satirically protest Muslim slavers from the early 1800s if it's funny enough.
[ link to this | view in chronology ]
That depends on whether you count mass casualty shootings such as the Pulse nightclub shooting, the Las Vegas concert shooting, and the recent racially-motivated shooting in El Paso as acts of terrorism.
[ link to this | view in chronology ]
Re:
To my mind, terrorism requires a political aim while without it there's just some nutter who snapped. So, pulse, El Paso and, say Dylan Roof certainly count, while Vegas maybe not as nobody knows his real motives.
[ link to this | view in chronology ]
I don’t think we need knowledge of the motives of Some Asshole in Vegas to say a mass casualty shooting that left hundreds injured and several dozen people dead is “an act of terrorism”.
[ link to this | view in chronology ]
Re:
The definition varies but I prefer the version that says terrorism is violence with a political motive. That leaves everything from the IRA to 9/11 in the mix but leaves out lone nutters like Michael Ryan (I'm a child of the 80s in the UK so YMMV)
[ link to this | view in chronology ]
A fair point, though I would say that definition would exclude violence that affects the general public in that the public now fears going to a specific place or doing a specific thing. The motive for such violence being political matters not in re: this form of violence; the effect of the act (terrorizing the general public) is its true intent. Under such a definition, the Las Vegas shooting would count as an act of terrorism, as would the Aurora, Colorado theater shooting; an abortion clinic bombing; or damn near any school shooting.
[ link to this | view in chronology ]
Re:
I still say the political motive is paramount. It's the difference between terrorising people, and terrorising them to achieve something. Vegas guy didn't seem to want anything other than a high score and people to take out with him. The abortion clinic bomber was trying to change something. To me, that makes them different crimes even if they're similar on the outside. Roof was a terrorist, but not necessarily Aurora even though that had more victims
[ link to this | view in chronology ]
I still disagree, but fair points regardless. 👍
[ link to this | view in chronology ]
Re:
"I still disagree, but fair points regardless."
I appreciate that. Basically, having grown up in the UK with ties to cities that were targets of the IRA, then living in Spain not only near ETA but within sight of a Muslim country, I've grown to understand that there's a difference between terrorism and random violence, even if they use the same tactics. I understand conflating things, but to me there is a massive difference between someone doing something for a "cause" and someone who just wants to break things.
[ link to this | view in chronology ]
Re: Re:
I would have to agree with you.
Do we include the police too? I think we should.
[ link to this | view in chronology ]
Re: Re: Re:
"Do we include the police too?"
It's a damn shame that's even a serious question.
[ link to this | view in chronology ]
Re: Re: Re:
"Do we include the police too? "
I think it depends upon who you ask.
[ link to this | view in chronology ]
Re:
Of course we do. Terrorism is, specifically, the use of terrifying violence to advance a political goal. Not every violent act that terrifies people is "terrorism".
[ link to this | view in chronology ]
Re: Re:
Not sure why this is the case. What is the precedent, why is it limited?
There has been, and remains a large portion of the populace that refuses to acknowledge the real homegrown terrorists exist.
[ link to this | view in chronology ]
Re: Re: Re:
It's just the definition; or see Britannica or the FBI. Note the FBI's example of domestic terrorism, in which shooters "held anti-government views and who intended to use the shooting to start a revolution." Homegrown terrorists exist. The Unabomber famously wrote a political manifesto.
The term goes back to the Jacobins' Reign of Terror in the French Revolution. It's been associated with political goals from the beginning.
[ link to this | view in chronology ]
Here, we have a case study in a simple principle: The rights of the “worst” people must be protected so all people can enjoy those rights. We can accept that White nationalist extremists say heinous things and still believe they have the right to say such things.¹ Their right to speak freely must matter, no matter how much we dislike their speech, or we could all lose that same right.²
¹ — Well, so long as they aren’t advocating for violence or other illegal acts.
² — That said, the White supremacists can’t force their speech onto a third party platform. Nobody has that right.
[ link to this | view in chronology ]
Re:
Right on premise. Sadly, you falter immediately and create the very exemptions to individual freedom you are actively warning about.
They have the right to advocate that, they also have the responsibility to face the consequences of doing so.
To have such a reality in an ever increasingly connected world, is to ignore the simple truth: "Freedom of speech doesn't stop at the boundary of earshot or personal finance." To assert otherwise is to create yet another exemption by which the public's essential freedoms may be curtailed.
[ link to this | view in chronology ]
Re: Re:
"A platform censoring you is the modern day equivalent to the government censorship"
Saying that doesn't make it true.
"Today, a government could easily influence a major platform to censor the speech of it's users without running afoul of any applicable speech protections."
Then, you need to fix that. Just do it in a way that doesn't also remove the right of free speech and free association from private entities through vague criteria like "they're too big". Where are the limits? How big does a platform need to get before they and their users lose their rights?
[ link to this | view in chronology ]
Why is the Legislatuve branch, who are supposed to be making the laws, trying to stick their nose into something the Executive branch is supposed to be doing?
When is the Judical branch going to exercise their third of the checks and balances our government is supposed to be constructed around and slap the Executive and Legislative branches upside the head telling them to stop acting like children?
[ link to this | view in chronology ]
Re:
The judicial branch can't get involved until someone files a suit against one of the other two branches. Also, don't forget that judges are chosen by the executive. Don't be so quick to think that they'll slap them down, even if they should.
[ link to this | view in chronology ]
Re: Re:
Is the Judicial branch not getting involved tradition or is that actually written down somewhere to stay hands off?
Also the Executive branch may nominate the person but it is the legislative branch that gives the yay or any of them actually gaining the seat.
[ link to this | view in chronology ]
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.
[ link to this | view in chronology ]
Re: Re: Re: Re:
I would vote this lawsplainer up, but the discussion is otherwise fairly off topic.
Still, the effort is appreciated.
[ link to this | view in chronology ]
Congressional rejects vow to create rules to investigate citizens for homegrown terrorism over thought crimes. What would Sasha Baron Cohen do with that information?
[ link to this | view in chronology ]
I wonder who wrote the thing.
[ link to this | view in chronology ]
Can't help but think the main cause is politicians and their war of the parties.
Trump has often been accused of riling the base to go do things against others. One has to think Trump is just the accumulation of years and years of dirty political fighting and corruption against the citizens that elected them.
Now that it is finally coming to a head, suddenly the politicians are worried. I'd suggest they tone down the rhetoric and actually try to get somethings done that take both parties to do. The co-operation it takes to do basic political functions over time might calm the voter base.
Right now it feels like the verge of a civil war. Neither side seems capable of talking to the other side about getting things done. That war of words has been reflected off into the citizenship. Unless it is toned down, things will only get worse.
[ link to this | view in chronology ]
This messes up separation of powers
Congress has significant powers for the sake of investigating administration, government, judicative and executive and providing oversight. Subpoenaing private communications and/or "homegrown terrorism" is not a part of that, and the scant control mechanisms overseeing Congress itself are not designed for protecting private citizens' rights.
That the current government and administration considers Congress' function for providing oversight over the government a joke does not mean that Congress should find something else to occupy themselves with. Instead they need to do what they are elected for and sworn in to, their job prescribed by the Constitution.
[ link to this | view in chronology ]
Re: This messes up separation of powers
Congress has subpoena powers, I think this story is about the delegation of that power.
[ link to this | view in chronology ]
Re: Re: This messes up separation of powers
Sure they have subpoena power, but they have it for the purpose of fulfilling their constitutional functions, not those of law enforcement.
[ link to this | view in chronology ]
Re: Re: Re: This messes up separation of powers
All they have to do is claim they're thinking about passing a new law and need to study something.
[ link to this | view in chronology ]
Re: Re: Re: This messes up separation of powers
Yeah - kinda like what I said.
[ link to this | view in chronology ]
This seems to be a way to route around end to end encryption.
[ link to this | view in chronology ]