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How much noise does the other shoe make when it drops? If the shoe is a law that would complete the development of a police surveillance state in the United States, it’s almost silent.
Last week, the Senate Intelligence Committee quietly sent a bill to the Senate that would require on-line Internet content and service providers to literally become part of the country’s intelligence network by turning over to the government — without any government request — any posts on their systems related to “terrorist activities” and the identities of the posters.
News about the bill only became public when Reuters noticed and reported on it.
The provision, Section 603 of Senate Intelligence Authorization Act for Fiscal Year 2016, is terse, simple and frightening. If passed, it could force Internet providers to turn over information on organizations, activists, journalists, researchers and even interested commenters whose posts touch on “terrorist activity”: the over-used under-defined term that drives so much of our contemporary legislation. It would also encourage providers to monitor their systems for any material that could possibly be considered relevant to “terrorism”.
Not only does the provision chill communications but it turns the Internet into a law enforcement agency and that would fundamentally change its character and the society it serves.
The full Senate will now debate the law and it will probably sail through in the Fall. The House hasn’t announced a similar measure but, given who runs the House, such a companion bill is very likely.
“Whoever, while engaged in providing an electronic communication service or a remote computing service to the public through a facility or means of interstate or foreign commerce, obtains actual knowledge of any terrorist activity, including the facts or circumstances described in subsection (c) shall, as soon as reasonably possible, provide to the appropriate authorities the facts or circumstances of the alleged terrorist activities.”
And its Section C specifies:
“Any facts or circumstances from which there is an apparent violation of section 842(p) of title 18, United States Code, that involves distribution of information relating to explosives, destructive devices, and weapons of mass destruction.”
The measure is chilling and remarkable for the vagueness of its defined “crimes”, inclusiveness of its criminals and the mauling of one of our society’s most important institutions: the Internet.
Even its defenders admit that the bill changes Internet relationships radically. Up to now, some major Internet providers (like Facebook and Twitter) “scrubbed” their systems of any posts that advocated violent opposition to U.S. policies or activities or violent actions against people. Such “scrubbing” is controversial: some free speech advocates argue that it is effectively censorship. But it’s not law enforcement investigation because these companies erased everything about the post including the identities of and identifying details about the poster.
This law changes that. “Twitter, Facebook and YouTube all, as I understand it, remove content on their sites that come to their attention if it violates their terms of service, including terrorism,” Senator Diane Feinstein (the bill’s sponsor) told the Senate Judiciary Committee last week. “The companies do not proactively monitor their sites to identify such content nor do they inform the FBI when they identify or remove their content. I believe they should.”
That, in itself, is a huge problem.
Internet providers aren’t law enforcement agencies. The very essence of the Internet is based on users’ confidence that their providers are supporting their right to communicate and protecting them from any attempt to repress that right. What’s more, that trust precludes the provider from acting as a “judge” about what is acceptable in communications and what’s not. This bill throws that relationship out the window. It turns providers into gatherers of information who must report to the government if that information qualifies as “actual knowledge of terrorist activity” and the provider now has to make that call.
As a result, writes Stephen Lendman on the Centre for Research on Globalization website, “warrantless searches and seizures of personal electronic content will be authorized, potentially subjecting countless numbers of innocent people to unjustifiable scrutiny.”
The world uses and needs the Internet and providers are the source of access to it. This law would cripple that relationship and end the trust that drives it. But it goes a lot further, into more dangerous territory.
“Unfortunately, this provision would create strong incentives for providers to over-report on the activity and communications of their users, in order to avoid violating the law,” a letter to the Senate Sub-Committee from 34 Internet organizations said. “This provision risks bringing wholly innocent people under the scrutiny of the U.S. government in a procedure that includes no limits on the use of the reported information and no safeguards against abuse.”
Most activists, for example, post information about activities that the government might consider or might someday classify as “terrorist”– for example the activities of animal rights or environmental activists both of which have been investigated as “terrorism,” or mass actions like the Occupy Movement, which was monitored, harassed and disrupted by federal and local police agencies acting under “anti-terrorism” authority. While the bill includes specific activities long regarded as terrorism (like making bombs), its vague language does not exclude other activities such as reporting about groups considered terrorist; private communications with people the government is investigating (or people who communicate with them); discussion of activities, demonstrations and campaigns the government might consider potentially violent. The list is endless and because there’s no “exclusion” to what should be reported there is no limit to what providers might have to turn over.
So if a provider is serving the email account of a citizen in this country who writes someone in another country asking a question about what a local leader may have said about what might be considered a terrorist activity — the kind of thing that journalists could, and should, be doing — that email and its author must be turned over.
The law makes clear that providers aren’t required to monitor the content of their users’ communications. But if the government requests information on a person, it must be turned over or if the government tells the provider a particular user is “under suspicion” the provider now has “actual knowledge” of possible terrorist activity and would be required to turn over everything stored and monitor the account, collecting information that might qualify.
What’s more, providers whose users are in other countries would now be carrying on intelligence activities internationally.
Senate officials insist that this isn’t the intent of the bill. They say, as did Feinstein, that this is about investigating and protecting us from real terrorist activities. But this is the same U.S. government that has violated every fundamental concept of privacy and free speech on the Internet by gathering billions of emails, articles, profiles, and comments from the Internet without us knowing it (until it was revealed) and without any limit to who the targets of this gathering were. Can anyone of sound mind accept the Senate’s assurances?
The issue becomes more acute for providers who specialize in progressive and left-wing movement communications, like May First/People Link (the organization I work for). May First’s users — none of whom are terrorists but some of whom work in struggles that are sometimes the targets of investigation — communicate daily in ways that could be construed as subject to reporting under this law. What happens when we refuse to give up this information, as we would? What penalties would we suffer? Would we be closed down?
In fact, some of the material we at ThisCantBeHappening.net, an award-winning online news site, publish could very well qualify as “knowledge of terrorism” under this vague nightmare of a law. Would May First, our host, be required to turn over information about our authors, our sources, the people we have interviewed, the documents we may have seen? Would my colleague Dave Lindorff’s articles on the Boston Marathon Bombing mean that his personal information and communications should be turned over?
The list of implication and inclusion is massive and it broadens violently if the Congress passes other “anti-terrorism” laws. For example, what happens when laws are passed that define shootings, violent demonstrations or even the “cyber-terrorism” (as the government calls it) of hacker groups like Anonymous, as terrorism? Members of such groups have already been imprisoned for their activities. What if you have communicated with one of those people about what they’re doing?
Are discussions about possible violent actions covered here? What about theoretical discussion about whether such actions are appropriate? If you interview someone involved in a riot during a major demonstration, must your provider turn that material over? What if such a person is a member of your family — are your emails to that person subject to seizure?
Police states don’t write laws including or specifically definining what they can arrest you for. They write vague laws that officials can apply to arrest you for anything they don’t want you to do.
If this law is passed, our country will qualify (in this sense at least) as a police state and undoing that to regain our freedom is going to become much harder.