Terrorism and the Internet
From white supremacist propaganda to the secrets of the atom bomb, it's on the Internet, and it has a number of people like Senator Diane Feinstein worried. But, does this information make the Internet an information warehouse and rallying ground for terrorists and criminals? That seems to be the biggest fear concerning many people. Of course there are a lot of unpopular and anti government views expressed on the internet, but how much of the material out there openly advocates or instructs in criminal or violent action? Does this kind of information present a danger to government or citizens considering the ease with which it can be retrieved from the internet? To answer these questions, we've attempted to hunt down the material that's causing all the anxiety. In all honesty, it's not so easy to find. This is not to say that it isn't out there, but such information is more likely to be in obscure places or buried in a hale of other material condemning it. For example, you might think that the most logical way to start the hunt for wood be terrorists on the net would be something like a Yahoo search on terrorism, right? But, if you did that, you'd find a few humor pages, some irrelevant sites that just happen to mention terrorism, and an awful lot of counter terrorism pages, but no one openly advocating terrorism. But surely, if we dug just a little deeper, say Yahoo's alternative culture directory we're bound to come up with something. This looks a little more promising with categories like militias, white supremacy, and of course the most dreaded of the lot, anarchy. Yep, those damn anarchists are out on the net in droves ready to bring chaos to the nation and blow up anything in their way, right? Wrong! What you'll find instead are a lot of sincere resources and essays about anarchy with a good number of them attempting to Dis-spell the myths about anarchy being synonymous with terrorism and chaos. The idea of dispelling myths is seen by many people as one of the major benefits of an uncensored media. To be sure, there are some especially obnoxious sites out there such as the Aryan Nations home page. But, such groups often meet with a barrage of other web pages and messages countering the propaganda.
The thing that has a lot of people concerned is that our legislators do not see the same benefits in the internet. Legislators are seeing the internet merely as a new broadcast/library media where information propagates faster than ever before. Because information can travel far and fast, it has more potential to fall into the hands of those who would misuse it. The latest fear is that ideas put forth on the net advocating violence may incite someone to commit that act of violence. An article in the New York Times reported that a texis student has been charged with making a terrorist threat against California senator Tim Leslie over a use net newsgroup. Apparently, the student made such comments as "Let us declare open season on state SEN TIM LESLIE, his family, everyone he holds near and dear, the Cattlemen's association and anyone else who feels that LIONS in California should be killed." Prosecutors feel that such a message puts Leslie in danger from anyone who might be incited to action by it. But, many people believe that the students comments were mere political rhetoric as a reaction to legislation supported by Leslie that would open hunting season on mountain lions. In a visit to the scene of the crime, "talk.politics.environment,"I found a heated discussion going on about the incident. Many people like Kelly Cowan were outraged at prosecutors' reaction to the posting. "People say things in the heat of the moment," Cowan posts, "whether it be passion, sadness, anger, or any other emotion. It is called emotion for a reason. I recognize the statement made was made in anger, and we have all said things like that- don't even try to lie and say you haven't said something similar yourself." But, others disagreed, contending that the student's comments were equivalent to shouting fire in a crowded room or criminally inciting an act of violence. And Senator Leslie himself made a guest appearance to set the record straight. "When my office learned of the death threats posted by Mr. Saavedra on a news group," he said, "we contacted state law enforcement, as we do with all incidents of this nature. . . At that point the matter became the sole responsibility of various law enforcement agencies. I did not file a complaint, nor did I ask that this individual be arrested. In short, I bear no responsibility for the decision to arrest Mr. Saavedra, and I have no authority over future decisions regarding his prosecution." As Senator Leslie suggests, possible death threats have to be investigated no matter what, and this isn't the first time someone has been investigated for making death threats over the internet. GNN's Net Daily News has an article about a humor web site investigated by the secret service because it featured a picture of Bob Dole's head exploding. The secret service wisely determined that this page was merely humor. Humor pages are probably one of the easiest places to find talk of violence against the government. But, when does this talk cross the line between humor and satire and actual threats? And is such humor more dangerous on the internet than in other media? Comedians on stage or television have been known to jokingly call for politicians' deaths or dismemberment. So what is it about the internet in particular that has legislators worried?
Again, the internet is feared because it can conceptually carry information further and faster than before. What is disturbing is the notion harbored by legislators that information from the net might influence people to commit crimes. It is fortunate that the secret service did not draw this conclusion about the exploding heads page. But, speaking of exploding, we now come to the real subject that has people like Diane Feinstein up in arms. A lot of media attention has been given to how easy the internet has made it for people to get their hands on instructions for making explosives or performing other acts of violence. It is indeed true that these instructions can be had easily enough. It took a bit of searching, but it's easy enough to find the Untech directory at wiretap. This directory contains a number of interesting files ranging from radio scanner codes to tips for committing senseless vandalism. It also contains The Big Book of Mischief, and the Terrorist's Handbook, both of which list the many ways to make explosives and other chemical devices. There is also a larger hypertext book documenting all sorts of ways to break the law. It's been filed under the name of the famed and heavily sought after "Anarchist Cookbook." And no. The real Anarchist Cookbook isn't available on the internet according to the faq Is this stuff illegal? Most people generally consider the information itself to be common knowledge or at least in the public domain. The problem of late has been that some people, especially kids, have started putting the information into practice. An article in the Columbus Dispatch documents some of the more recent incidents. Considering the number of accidents resulting from kids trying to make bombs with information from internet sources, and especially after the Oklahoma bombing, it is not surprising that people like Senator Feinstein would want to take preventative measures. But, why focus on the internet? Even the father of one of the juvenile bombers blaims their son, not the internet in stating, "He learned a valuable lesson, but he learned the hard way," The fact is, information on building bombs has been around in print for a long time, but people don't seem to realize this. Ken Shirriff sums up this phenomena well in his Anarchist Cookbook FAQ when he says, "for some reason, getting this stuff from a bookstore is not news, but getting it over the internet is."
Many people detest the
idea of the internet being singled out for a censorship law banning
bomb making instructions. But, it is an undeniable fact that web
browsers and search tools have made finding
this material on the internet a lot faster, easier, and cheaper
than having to go to the library or bookstore, hunt around, possibly
pay for the information, and head back home. Might not the government
have an interest in restricting access to books only considering the
nature of internet technology? This question will be examined more
closely in other sections of this project. On the other hand, when any
information
like the Terrorist Handbook is made available on the net, there are
enough experts to review it and check it's accuracy. Many people on the
newsgroup rec.pyrotechnics have concluded that a lot of the
bomb building information on the net is inaccurate. The point is, we
cannot simply jump to conclusions or policy decisions without taking a
good look at the technology of the internet.
To aptly answer this question, one must examine it both in context of the Government's right and the peoples' rights, and also, whether terrorism on the Internet and beyond is posing a threat at this juncture.
The Present Threat Of Terrorism In The United States
Terrorism is rare and on a steady decline. In fact, international terrorism attacks are at their lowest level in 23 years according to the U.S. State Department statistics and in the past 11 years, there have been only two violent international terrorist incidents in the United States.
It is true that all societies are vulnerable to acts of terrorism. However, underlying any form of legislature to curtail possible terrorist activity in a democratic society is the need to balance each citizen's right to free speech with that of their right to be free of fear.
The Internet
The Internet provides a facility for people to meet, have discussions and network. Discussion may range from recipes to computer games to politics. It is certainly true that the Internet can house breeding groups of political dissidence, just in the same way as the local coffee shop or street corner - the extent to which the Internet differs is merely in scope.
In effect, the Internet has become the electronic town square for all people across the nation, no matter where they live. If they have a hook-up, they can jump right in; subscribe to alt.militia.activism or rec.food.recipes.
The Government's Right To Protect The People
The Government's right in a democratic society is to represent the people's concerns and respect their rights. However, drafts of various anti-terrorism bills that have been proposed to Congress have allowed grave compromises to citizens' rights to privacy. Clinton and Doles' terrorism bills define all violent and property crimes as "terrorist" offenses, while also lifting restraints on domestic use of the military, allowing admittance of secret evidence in case trials, and broadly expanding wiretap authority.
Though President Clinton was jusitified in declaring the Oklahoma City bombing as "an attack on our way of life", passing extremist legislature would give terrorism a victory it could never have won on its own: taking the first chisel to the American Bill of Rights.
The Citizens' Rights To Protect Themselves
Recent Gallup polls indicate that 39 percent of Americans believe "the federal government has become so large and powerful it poses an immediate threat to the rights and freedoms of ordinary citizens." And that if the word 'immediate' is removed, an additional 13 percent also believes it is true. With all these computers, the people would like to think that all this data about them might be safer in some way, rather than being used by the Government like Big Brother in order to monitor any possible terrorist activity.
The Founding Fathers of this Nation put fundamental human rights into our Constitution in order to protect them from transient majorities. The provisions in all aforementioned laws question these rights, and we are left with the question of whether the 'protection' is worth the price? Is there a need for this type of legislature?
In CATO's Executive Summary(May 25, 1995), they state:
"There is No Terrorism Crisis 'By enabling terrorists to appear much stronger than they really are, the media often find themselves working Pour le roi de Prusse,' .... [c]ontrary to the imagery of some irresponsible segments of the media (and their Congressional analogues), there is no need to legislate an atmosphere of panic and hysteria."
Conclusion
The most important rights the Government need protect are those which are laid down in the Constitution and Bill of Rights. If these are in turn safeguarded by legislature then the issue of protecting both self and citizens will come by virtue of the other.
Legislation to Prevent Terrorist Activities on the Internet
In a decision in 1919, Supreme Court Justice Holmes wrote that the First Amendment does not protect a person from "falsely shouting fire in a theater and causing a panic," Schenk v. United States, 249 U.S. 47, 52 (1919). But what are the implications of shouting fire, inciting and advocating violence, and the organization of terrorist groups and activities on the Internet? The likelihood of violence resulting from shouting fire on the Internet is much less likely than in the real world, and therefore less deserving of prosecution and punishment than a non-virtual scenario would entail. Since readers are dispersed around the country and the world, the possibility that shouting fire on the Internet will result in violence is much reduced.
In the wake of the Oklahoma City bombing, Senator Dianne Feinstein of California has proposed new legislation to outlaw the dissemination of bomb-making literature on the Internet if there is good reason to believe that the information will be used to harm people and property. However, this legislation is potentially in violation of the First Amendment. As the Internet becomes more pervasive in daily life, and as political advocacy groups (among others) increasingly use the Internet as a viable forum, we need to reexamine some basic Constitutional issues, especially the difference between protected advocacy and dangerous action. It needs to be recognized by our lawmakers and by our nation in general that all exchanges of information and text on the Internet are a form of speech. With this in mind, a close examination of the relevant issues of privacy, advocacy, assembly, and freedom of speech is at hand.
The Internet has the potential to be a powerful political tool. As a society, we should be excited about the increased level of political discourse that the Internet makes possible; the more that citizens are involved in the political process, the more representative our government will become. Thus, we need to be extremely careful not to damage or compromise the rights of law-abiding citizens in a search to expose and prosecute dangerous terrorist activities on the Internet.
Prosecution of Terrorist Activities
There is a two-pronged test for criminal prosecution of speech-related activities on the Internet, established in two supreme Court rulings. In Brandenberg v. Ohio, 395 U. S. 444 (1969). Advocacy may not be proscribed unless it 1) "is directed to inciting or producing imminent lawless action", and 2) that such advocacy is "likely to ... produce such action." Id. at 447. One can not be prosecuted for advocating violence or the overthrow of the government; there must be an immediate threat of violence or criminal activity likely to be incited by that advocacy to warrant prosecution. In Yates v. United States, 354 U.S. 298, 318 (1957), the Supreme Court established that advocacy and teaching of forcible overthrow of the government are immune from prosecution under the First Amendment. These decisions constitute the "speech plus" doctrine which holds that advocacy alone does not warrant prosecution; there must be some action beyond the advocacy, action likely to incite violence, before political advocacy can be prosecuted.
There is an obvious application of the speech-plus doctrine to our discussion of terrorist activity on the Internet. As all exchanges on the Internet are forms of speech, prosecution of terrorist activity on the Internet falls under the speech-plus umbrella. There is no immediate threat of violence, in any imaginable circumstance, that can result from Internet activities. The Internet may be considered, by a stretch of the imagination, as an indirect link to violent activity. However, it does not constitute an immediate threat. To prosecute a political advocacy group based solely on their Internet activities, activities that are protected under the First Amendment, is a Constitutional violation.
Investigation of Terrorist Activities
Law enforcement must respect the First Amendment rights of citizens if they are to fully participate in the political process. Citizens must feel that their rights are not compromised in the interest of investigating possible terrorist activities. If they feel that they are likely to draw attention from the government or law enforcement agencies for their association with any number of advocacy groups, citizens may be less likely to vigorously participate in the political process.
The Supreme Court has recognized the nexus between First and Fourth Amendment rights in their rulings. For example, in United States v. United States District Court, 407 U.S. 297 (1972), the Court ruled that a warrantless wiretap not only violates the Fourth Amendment, but compromises the First Amendment. Both the Privacy Act of 1974 and various Attorney General guidelines for law enforcement agencies are in place to ensure that the Constitutional rights of citizens, and specifically those protected by the First Amendment, are not compromised.
The Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Domestic Security/Terrorism Investigations ensure that the FBI is able to confidently and effectively perform its duties and investigations without violating the First Amendment rights of citizens. As relates to the investigation of terrorist activities on the Internet, we find the following:
* "A domestic security/terrorism investigation may be initiated when the facts or circumstances reasonably indicate that two or more persons are engaged in an enterprise for the purpose of furthering political or social goals wholly or in part through activities that involve force or violence and a violation of the criminal laws of the United States." p. 13.
* Speech-plus predicate for full investigations: a full investigation may not be commenced based "solely on activities protected by the First Amendment or on the lawful exercise of any other rights secured by the Constitution" if there is no "prospect of harm." p. 3.
* Supervisory approval for intrusion on political groups: No full investigation or preliminary inquiry is to be opened involving terrorist or political groups without supervisory approval. p. 4-5.
Finally, in the Privacy Act of 1974, we find:
"Each agency that maintains a system of records shall maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about who the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity." Section (e)(7), Privacy Act of 1974 (5 U.S.C. 552a).
Thus, to investigate a terrorist or political advocacy group, the FBI must show that the speech plus predicate is fulfilled, and must have supervisory approval before investigating. The FBI may not maintain records or investigate any individual based upon how they exercise their First Amendment rights.
Conclusion
Again, any exchange of information is a form of speech, and is therefore potentially protected under the First Amendment. Since Internet activity, dialogue, mailings, etc., do not constitute an immediate threat, and since they do not directly incite violence, Internet activity by any individual as a member of any group is protected under the First Amendment.
Thus, any legislation that would attempt to limit, monitor, or prohibit use of the Internet by terrorist groups is a violation of the First Amendment rights of that group's members. Representative Abner Mikva, in a discussion of the Privacy Act, stated, "The harm comes when the ordinary person feels he cannot engage in political activity without becoming a 'person of interest,' without having his name and photo placed in a file colloquially, if not officially, labeled 'subversive.'" The right to dissension is guaranteed by the Constitution, and must be protected. New, anti-terrorist legislation aimed at the Internet and other forms of media is a violation of the First and Fourth Amendment rights of United States citizens.
"Repression breeds hate;...hate menaces stable government; ...the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies...." - Justice Brandeis.