Brittany Gunter – In the wake of the San Bernardino and Paris massacres, new legislative efforts have emerged that aim to prevent terrorists from using social media and other forms of technology to recruit supporters and plot attacks. Representative Ted Poe (R-Texas) previously introduced a bill on September 30, 2015, titled “Combat Terrorist Use of Social Media Act of 2015,” which sought to require, among other things, the President to report to Congress on strategies for combatting terrorists’ use of social media. A week before the bill successfully passed through the House, Senator Dianne Feinstein (D-California) introduced a similarly focused bill that would require companies, such as Facebook, Twitter and Google, to report “terrorist activity” on their services to law enforcement. However, these companies are strongly resistant to the legislation.
Senator Feinstein and other supporters of the “Requiring Reporting of Online Terrorist Activity Act” argue that the opposition is unfounded because there is no requirement that the companies initiate “any additional actions to discover terrorist activity.” Since social media companies already have technology in place to monitor and regularly delete accounts or posts that contain terrorism-related content, the bill would simply call for open lines of communication with law enforcement officials. A press release from Senator Feinstein provided two examples of terrorist activity on social media that went unreported to law enforcement. One example involved the San Bernardino attacker, Tashfeen Malik, who sent private messages and made posts about her allegiance to the Islamic State of Iraq and Syria (ISIS) on Facebook.
Despite good intentions, social media and technology companies argue the bill will likely be ineffective because of its broad language. The companies mainly take issue with the phrase “terrorist activity” because the bill does not provide a definition. Such ambiguity may lead to the over-reporting of communications and activities “not of material concern to public safety, creating a ‘needle in the haystack’ problem for law enforcement.’”
Furthermore, the breadth of reported information may cause First and Fourth Amendment concerns for social media users. There is a risk that private communications between innocent people will be reported to law enforcement officials as “terrorist activity,” potentially “creating a chilling effect on constitutionally protected speech.” A Fourth Amendment or Electronic Communications Privacy Act violation may also occur if the companies are required to submit the “‘facts and circumstances’ associated with alleged terrorist activity” as required by Feinstein’s bill. Essentially, law enforcement officials would be able to circumvent the warrant requirement to access such information, which may include contents of private messages, files, and photos.
From a business perspective, the subject social media and technology companies are also concerned with how the legislation and other efforts to combat terrorism will affect their liability. A failure to discover and report activity that then leads to an attack may be grounds for liability. Accordingly, companies may choose to either commit additional resources to ensure all potential “terrorist activity” is reported or become “willfully blind so they never reach the intent element of the statute…” Neither situation is ideal.
On January 8, 2016, Obama administration officials met with Apple, Facebook, Twitter, Google, and other social media and technology companies to discuss these issues. In addition to discussing how ISIS is using social media and technology services to recruit supporters, the participants reportedly discussed how the companies can “help others create, publish, and amplify alternative content that would undercut ISIS….” Counteracting some of the terrorist group’s propaganda may be successful, but it requires the companies’ cooperation. As aforementioned, a fear of facing liability or of having to devote an extensive amount of additional resources to be in compliance will likely dominate the companies’ willingness to support such legislation. Whether in fact an agreement was reached at the meeting, or if the companies will be able to continue to evade this national security responsibility remains to be seen.
