terrorism act – Techdirt (original) (raw)

Supreme Court Takes Section 230 Cases… Just Not The Ones We Were Expecting

from the well,-this-is-not-great dept

So, plenty of Supreme Court watchers and Section 230 experts all knew that this term was going to be a big one for Section 230… it’s just that we all expected the main issue to be around the Netchoice cases regarding Florida and Texas’s social media laws (those cases will likely still get to SCOTUS later in the term). There were also a few other possible Section 230 cases that I thought SCOTUS might take on, but still, the Court surprised me by agreeing to hear two slightly weird Section 230 cases. The cases are Gonzalez v. Google and Twitter v. Taamneh.

There are a bunch of similar cases, many of which were filed by two law firms together, 1-800-LAW-FIRM (really) and Excolo Law. Those two firms have been trying to claim that anyone injured by a terrorist group should be able to sue internet companies because those terrorist groups happened to use those social media sites. Technically, they’re arguing “material support for terrorism,” but the whole concept seems obviously ridiculous. It’s the equivalent of the family of a victim of ISIS suing Toyota after finding out that some ISIS members drove Toyotas.

Anyway, we’ve been writing about a bunch of these cases, including both of the cases at issue here (which were joined at the hip by the 9th Circuit). Most of them get tossed out pretty quickly, as the court recognizes just how disconnected the social media companies are from the underlying harm. But one of the reasons they seem to have filed so many such cases all around the country was to try to set up some kind of circuit split to interest the Supreme Court.

The first case (Gonzalez) dealt with ISIS terrorist attacks in Paris in 2015. The 9th Circuit rejected the claim that Google provided material support to terrorists because ISIS posted some videos to YouTube. To try to get around the obvious 230 issues, Gonzalez argued that YouTube recommended some of those videos via the algorithm, and those recommendations should not be covered by 230. The second case, Taamneh, was… weird. It has a somewhat similar fact pattern, but dealt with the family of someone who was killed by an ISIS attack at a nightclub in Istanbul in 2017.

The 9th Circuit tossed out the Gonzalez case, saying that 230 made the company immune even for recommended content (which is the correct outcome) but allowed the Taamneh case to move forward, for reasons that had nothing to do with Section 230. In Taamneh, the district court initially dismissed the case entirely without even getting to the Section 230 issue by noting that Taamneh didn’t even file a plausible aiding-and-abetting claim. The 9th Circuit disagreed, said that there was enough in the complaint to plead aiding-and-abetting, and sent it back to the district court (which could then, in all likelihood, dismiss under Section 230). Oddly (and unfortunately) some of the judges in that ruling issued concurrences which meandered aimlessly, talking about how Section 230 had gone too far and needed to be trimmed back.

Gonzalez appealed the issue regarding 230 and algorithmic promotion of content, while Twitter appealed the aiding and abetting ruling (noting that every other court to try similar cases found no aiding and abetting).

Either way, the Supreme Court is taking up both cases and… it might get messy. Technically, the question the Supreme Court is asked to answer in the Gonzalez case is:

Whether Section 230(c)(1) of the Communications Decency Act immunizes interactive computer services when they make targeted recommendations of information provided by another information content provider, or only limits the liability of interactive computer services when they engage in traditional editorial functions (such as deciding whether to display or withdraw) with regard to such information.

Basically: can we wipe out Section 230’s key liability protections for any content recommended? This would be problematic. The whole point of Section 230 is to put the liability on the proper party: the one actually speaking. Making sites liable for recommendations creates all of the same problems that making them liable for hosting would — specifically, requiring them to take on liability for content they couldn’t possibly thoroughly vet before recommending it. A ruling in favor of Gonzalez would create huge problems for anyone offering search on any website, because a “bad” content recommendation could lead to liability, not for the actual content provider, but for the search engine.

That can’t be the law, because that would make search next to impossible.

For what it’s worth, there were some other dangerously odd parts of the 9th Circuit’s Gonzalez rulings regarding Section 230 that are ripe for problematic future interpretation, but those parts appear not to have been included in the cert petition.

In Taamneh, the question is focused on the aiding and abetting question, but ties into Section 230, because it asks if you can hold a website liable for aiding and abetting if they try to remove terrorist content but a plaintiff argues they could have been more aggressive in weeding out such content. There’s also a second question of whether or not you can hold a website liable for an “act of intentional terrorism” when the actual act of terrorism had nothing whatsoever to do with the website, and was conducted off of the website entirely.

(1) Whether a defendant that provides generic, widely available services to all its numerous users and “regularly” works to detect and prevent terrorists from using those services “knowingly” provided substantial assistance under 18 U.S.C. § 2333 merely because it allegedly could have taken more “meaningful” or “aggressive” action to prevent such use; and (2) whether a defendant whose generic, widely available services were not used in connection with the specific “act of international terrorism” that injured the plaintiff may be liable for aiding and abetting under Section 2333.

These cases should worry everyone, especially if you like things like searching online. My biggest fear, honestly, is that this Supreme Court (as it’s been known to do) tries to split the baby (which, let us remember, kills the baby) and says that Section 230 doesn’t apply to recommended content, but that the websites still win because the things on the website are so far disconnected from the actual terrorist acts.

That really feels like the kind of solution that the Roberts court might like, thinking that it’s super clever when really it’s just dangerously confused. It would open up a huge pandora’s box of problems, leading to all sorts of lawsuits regarding any kind of recommended content, including search, recommendation algorithms, your social media feeds, and more.

A good ruling (if such a thing is possible) would be a clear statement that of course Section 230 protects algorithmically rated content, because Section 230 is about properly putting liability on the creator of the content and not the intermediary. But we know that Justices Thomas and Alito are just itching to destroy 230, so we’re already down two Justices to start.

Of course, given that this court is also likely to take up the NetChoice cases later this term, it is entirely possible that next year the Supreme Court may rules that (1) websites are liable for failing to remove certain content (in these two cases) and(2) websites can be forced to carry all content.

It’ll be a blast figuring out how to make all that work. Though, some of us will probably have to do that figuring out off the internet, since it’s not clear how the internet will actually work at that point.

Filed Under: aiding and abetting, algorithms, gonzalez, isis, recommendations, section 230, supreme court, taamneh, terrorism, terrorism act
Companies: google, twitter

UK Terrorism Law Used To Prosecute Actual Terrorist Fighter For Possessing A Copy Of 'The Anarchist Cookbook'

from the citizens,-let-the-Ministry-of-Culture-guide-your-reading-decisions dept

We’ve reached the point in terrorism hysteria where someone can be prosecuted simply for having a copy of book already owned by millions. Ryan Gallagher details the trial of Josh Walker — a man who actually left the UK to fight against terrorists, only to be charged under the nation’s terrorism laws when he returned.

Police had arrested Walker when he arrived at the airport. They later searched his apartment, turning up a copy of the infamous “Anarchist Cookbook,” which contains bomb-making instructions along with information about how to eavesdrop on phone calls and commit credit card fraud. Walker was accused of violating the Terrorism Act because he possessed information “likely to be useful to a person committing or preparing an act of terrorism.” He faced the possibility of a 10-year jail sentence.

Walker didn’t even possess a physical copy of the book, so to speak. He did what any number of people could have done: downloaded a freely-available PDF and printed it out. Walker downloaded his copy from a local library for use with a role-playing “crisis game” group. He apparently used it to create terrorism scenarios for the group to work with. This was corroborated by statements from other members of the group.

Not wishing to alarm outsiders, the group routinely destroyed its notes and other documents post-game. This was the direct result of being previously reported to the police by a janitor who came across notes the group left behind after role-playing a terrorist attack. Apparently, Walker forgot to toss his printed Anarchist Cookbook PDF into the fire with the rest of the prep materials.

The prosecution claimed Walker retained his copy of the book — again, a book anyone can download from the local library — because he was “curious” about the contents. More ridiculously, the prosecution suggested the printed PDF Walker had in his bedroom “endangered public safety.”

The government apparently wanted to take an actual terrorist fighter down for obtaining a copy of book that’s not actually illegal to possess in the UK. But even the government’s expert witnesses seemed to feel it’s unlikely the book posed any sort of threat.

Walker’s case seemed to strengthen on Wednesday, when Sharon Marie Broome, an explosives expert with the British Ministry of Defence, told the court that while the makeshift explosive instructions in the “Anarchist Cookbook” were “credible,” much of the same information could be obtained from freely available books and academic literature.

Broome said that she had worked for 25 years assessing explosives, sometimes forensically analyzing devices used in real terrorist attacks perpetrated in the U.K. and overseas. Bennathan, Walker’s lawyer, pressed her on whether she had ever encountered a terrorist case that involved the use of the “Anarchist Cookbook.” She could not provide any examples.

Fortunately, there’s a happy ending to this story. Walker was found not guilty by the jury. But that this happened at all should be of concern to anyone who thinks the best way to fight terrorism is by expanding the reach and power of the government. Simply possessing something the government finds objectionable is apparently a criminal act in and of itself, even without any evidence suggesting the contents of the book were going to be used nefariously. Walker won’t be the last person prosecuted for reading “dangerous” things or thinking “dangerous” thoughts. And it’s giving terrorists exactly what they want: a steady pruning of citizens’ rights and protections by fear-fueled legislators.

Filed Under: anarchist cookbook, josh walker, terrorism, terrorism act, uk

UK Man Gets 12-Month Sentence For Refusing To Turn Over Passwords To Police

from the privacy:-the-new-terrorism dept

Here’s how you can become a terrorist without actually participating in anything terror-related. Just hang out in the UK with locked devices until law enforcement develops an interest in you.

A director of a Muslim advocacy group has been convicted of failing to hand over passwords for an iPhone and a laptop, which he said contained sensitive information from a torture victim.

Muhammad Rabbani, 36, from London, was found guilty but walked free after being handed a 12-month conditional discharge at Westminster magistrates’ court on Monday. He was ordered to pay £600 in costs.

The police may have failed to sweat passwords out of Rabbani during last November’s three-hour detention, but they were instrumental in getting him charged under the UK’s terrorism laws. Rabbani will be serving the UK equivalent of a suspended sentence. No jail unless “further violations” occur. This means all police have to do is stop him somewhere else and demand his passwords. Any refusal to do so will be a violation of his conditional discharge.

Unlike the US, there’s no question of potential rights violations to be resolved. The UK’s anti-terror laws enable this sort of law enforcement behavior. Rabbani said he had sensitive information on his devices he didn’t feel comfortable sharing with police, especially when they had little reason to suspect him of being up to anything terroristic.

Rabbani is apparently investigating a torture case linked to the US, involving a citizen in one of the Brown Countries (a.k.a., a Gulf state). His trips back and forth have been greeted with much consternation and demands for device passwords. But it wasn’t until last November UK law enforcement finally decided to move ahead with charges.

The court handing down the sentence was almost apologetic.

In sentencing, senior district judge Emma Arbuthnot said she believed Rabbani was protecting sensitive information but was bound by the law to find him guilty.

This is why bad bills should never be made law. They force people — like judges — to sentence someone for the crime of being uncooperative. Testimony during the case didn’t clear anything up. The officer who performed the attempted search and actual arrest wouldn’t say whether he was acting on specific information about Rabbani, or simply hassling someone UK police had hassled several times before without feeling the need to turn it into a terrorism case.

Passwords/pins are a foregone conclusion in the UK if the court can be convinced law enforcement demands were somehow related to national security. That’s how the 2000 terrorism law was designed. And with Rabbani, we’re being shown how it works.

Filed Under: muhammad rabbani, passwords, privacy, terrorism, terrorism act, uk

Brazilian Journalist Detained By UK Border Police For Reading A Book About ISIS

from the don't-judge-a-book-by-its-cover dept

Just last week, we reported on how a British human rights activist was held at London’s Heathrow airport by UK border police, and risked prison for failing to hand over his passwords. Now we learn from the Independent about a Brazilian journalist, Diogo Bercito, who was detained at Manchester airport for reading a book during his flight there:

He was reading The Isis Apocalypse, by former adviser to the US State Department on terrorism issues Will McCants. It explores the ideology of the terrorist organisation and is often used as a reference for journalists and researchers.

That seems a perfectly reasonable thing for a journalist to be reading in order to understand the background to the Manchester attack, which Bercito had been sent to cover for his employer, the Folha de São Paulo newspaper. But it was apparently enough for the border police to pull him in for questioning. His passport and press credentials were taken away, and he waited for an hour before he was interviewed. The police officers then explained exactly why Bercito had been singled out for special attention: another passenger on his flight had felt “uncomfortable” about his choice of reading matter.

To be fair, you can’t really blame the Manchester border police for following up on that complaint, given the terrorist attack that had taken place in the city just 24 hours before. But it’s a sad reflection of the effectiveness of the authorities’ scaremongering that some members of the public feel the need to report someone because he or she was reading about ISIS. What next: reporting people to the police for watching TV reports about terrorism?

After a few questions, Bercito was allowed to continue with his journey, with the friendly warning not to read his book in public — in case other, similarly-nervous people thought he was a terrorist — as well as a less-friendly threat:

Mr Brecito said they then returned his passport to him, but warned that “if they wanted, they could keep him for a long time”.

And they’re right — as David Miranda discovered the hard way.

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Filed Under: diogo bercito, heathrow, reading, terrorism act

British Human Rights Activist Faces Prison For Refusing To Hand Over Passwords At UK Border

from the digital-strip-search dept

As Techdirt readers will recall, in 2013 David Miranda was held by the UK authorities when he flew into Heathrow airport, and all of his electronic equipment was seized, in an act of blatant intimidation. His detention was under Schedule 7 of the UK’s Terrorism Act, which, as its name implies, is supposed to be used only if someone is involved in committing, preparing or instigating “acts of terrorism.”

That was clearly ridiculous in Miranda’s case, and it’s just as outrageous in the latest example of UK border bullying, this time against Muhammad Rabbani. He’s a British citizen, and the international director of Cage, which describes itself as “an independent advocacy organisation working to empower communities impacted by the War on Terror.” The Guardian fills in the background:

Rabbani, 35, from London, is involved through Cage in investigating torture cases. He said he was stopped at Heathrow in November returning from one of the Gulf states where he had been investigating a torture case allegedly involving the US.

He said he handed over his laptop and mobile phone but refused to provide his passwords. Although not a lawyer, he said the laptop contained information about the case and the client refused permission to release it. Rabbani was then arrested.

Rabbani later said that he felt that he had been subjected to a “digital strip search,” and pointed out:

Using this power, [UK] officers can compel a person to surrender their passwords without cause and there’s also no right to remain silent. There is nothing like this anywhere in the Western world.

Rather than dropping the case, this week the UK authorities have formally charged Rabbani under the Terrorism Act. He told the Guardian that he intends to fight, because the move has “serious implications” for journalists, lawyers and human rights, even though he faces three months in jail if he loses. This may be the first time Rabbani’s been charged, but he is certainly no stranger to being stopped by the UK border officials:

Rabbani said he had been detained 20 times over the last decade by border officials and had handed over his laptop and mobile phone. On previous occasions, after refusing to hand over passwords, they were returned to him and he was allowed to go. But not on this occasion.

He’s not alone in being subjected to this kind of harassment by the UK authorities. Figures published in an article on the Middle East Eye site reveal just how ineffective Schedule 7 examinations are at spotting terrorists:

More than 28,000 people were subjected to Schedule 7 examinations in 2015-16 resulting in about 10,000 intelligence reports being filed, according to a report by the Independent Reviewer of Terrorism Legislation.

About 500,000 are also estimated to have been subjected to pre-examination screening questions in the same period.

According to 2016 statistics, only 0.02 percent of stops lead to an arrest. An even smaller number lead to criminal charges.

The good news is that the UK court of appeal has already criticized Schedule 7 for forcing people to betray confidences and thus make it unlikely that others would trust them again with information in the public interest. That holds out the hope that Rabbani will ultimately win in the courts, since his case is very similar. The bad news, of course, is that the US is thinking of demanding passwords from every foreigner who visits the US.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: muhammad rabbani, passwords, schedule 7, terrorism act, uk

UK Appeals Court Says UK Terrorism Act's Detention Clause Violates Press Freedoms

from the good-to-see dept

As you may recall, back in 2013, soon after the Snowden revelations, the UK detained David Miranda at Heathrow Airport and took a bunch of his electronics, as he was flying through (from Germany on his way back home to Brazil). Miranda is Glenn Greenwald’s partner, and the claim by the UK was that in Berlin he had picked up copies of Snowden documents. The UK claimed that the detention was okay under Schedule 7 of the Terrorism Act, which allows for detaining terrorists, not journalists. But the UK said that it was okay, because it classified publishing Snowden documents as an act of terrorism.

Miranda sued in the UK, arguing that his rights were violated. Almost two years ago, a court ruled that the detention was lawful. Miranda appealed, and in an important ruling this morning, the appeals court said that, while Miranda’s detention may have been lawful, Schedule 7 is incompatible with human rights, with regards to protecting journalists, and could be subject to abuse (even if it says that Miranda’s detention wasn’t necessarily abusive). The court more or less ruled that the authorities acted within reason, given the existing law, but a specific part of the law, regarding how it handles journalists, was a problem with regards to the guarantees for a free press.

Reading through the full 36-page ruling is worthwhile. The ruling is a victory for those concerned about abuses against journalists under the Terrorism Act — but only a fairly narrow one. For example, the court does note that publication can “amount to an act of terrorism” if the publication “endangers a person’s life” and the person publishing “intends it to have that effect.” I can understand why someone might make that argument, but it still seems troubling to argue that any form of expression alone is an “act of terrorism.”

Where the court disagrees with the government’s claims, is in noting that Schedule 7 conflicts with Article 10 of the European Convention on Human Rights, which guarantees freedom of expression (not nearly as broadly as the US’s First Amendment, but at least somewhat), because it could be read to force journalists to give up sources, potentially harming a free and open press:

The central concern is that disclosure of journalistic material (whether or not it involves the identification of a journalist?s source) undermines the confidentiality that is inherent in such material and which is necessary to avoid the chilling effect of disclosure and to protect article 10 rights. If journalists and their sources can have no expectation of confidentiality, they may decide against providing information on sensitive matters of public interest. That is why the confidentiality of such information is so important. It is, therefore, of little or no relevance that the Schedule 7 powers may only be exercised in a confined geographical area or that a person may not be detained for longer than nine hours. I accept that the fact that the powers must be exercised rationally, proportionately and in good faith provides a degree of protection. But the only safeguard against the powers not being so exercised is the possibility of judicial review proceedings. In my view, the possibility of such proceedings provides little protection against the damage that is done if journalistic material is disclosed and used in circumstances where this should not happen. An important rationale for the principle of legal certainty that underpins the concept of ?prescribed by law? is that there should be adequate safeguards against arbitrary decision-making. Unlike the position in relation to article 5 and 8, the possibility of judicial review proceedings to challenge the rationality, proportionality and good faith of a decision to interfere with freedom of expression in cases involving journalistic material cases does not afford an adequate safeguard.

Given that, the court rules that Schedule 7 is currently “incompatible” with article 10, and thus the UK Parliament needs to change the law to fix that problem. The court does point out that there may be some easy fixes:

The most obvious safeguard would be some form of judicial or other independent and impartial scrutiny conducted in such a way as to protect the confidentiality in the material.

So it appears that the UK could fix this deficiency pretty easily — but in a way that would better protect journalists. I recognize that there are a number of statements and press releases that are excited about this ruling, but it does appear to be a bit of an overstatement. Yes, finding problems with Schedule 7, especially as it relates to journalists, is a big deal. But the concerns seem to be pretty narrowly focused, and open to a rather quick fix by the UK Parliament. A stronger ruling would have been better, but at least the court recognized some problems with the current setup of the law with respect to press freedoms.

As for what happens next? The UK could challenge the ruling at a higher level. Or it could change the law, as suggested by the court. Or it could ignore the ruling, which would lead to a European challenge. So this isn’t necessarily over yet….

Filed Under: article 10, david miranda, detention, free press, human rights, journalism, schedule 7, terrorism act, uk

Author Of UK's Terrorism Act Says It Was Never Meant For Situations Like David Miranda

from the too-late-now dept

In the US, we’ve had one of the key authors of the Patriot Act, Jim Sensenbrenner, speak out strongly, saying that the NSA interpretation of the law appears to be completely different than what was meant when the bill was written. It looks like something similar may be happening in the UK. Charles Falconer, who helped craft the UK’s Terrorism Act, which was used to detain David Miranda and swipe all of his electronics, has now spoken out, saying that it was an illegal use of the Act he wrote.

…schedule 7 powers can only be used “for the purpose of determining” whether the detained person is a terrorist. The use of the power to detain and question someone who the examining officer knows is not a terrorist is plainly not for this purpose, so it would neither be within the spirit nor the letter of the law.

There is no suggestion that Miranda is a terrorist, or that his detention and questioning at Heathrow was for any other reason than his involvement in his partner Glenn Greenwald’s reporting of the Edward Snowden story. The state has not even hinted there is a justification beyond that involvement.

He also hits back, pretty strongly, against the suggestion by some, including home secretary Theresa May, that the “terrorism” connection was that the content might fall into the hands of terrorists. But Falconer claims that this doesn’t make any sense:

It is important to understand the ramifications of May’s justification. She is not suggesting there is an issue about whether Miranda is a terrorist – the only lawful basis on which his detention and questioning could be justified. Rather, she is suggesting that he was in possession of stolen material which could help terrorism, presumably by publication. There is a world of difference between the two.

Had schedule 7 been in force when Salman Rushdie was writing Satanic Verses, May’s justification would have allowed his detention and questioning and the removal of his manuscript.

Using very loose, and obviously ridiculous, definitions to justify deplorable actions just don’t seem like a good idea — and yet the defenders of these programs continue to do so, seemingly forgetting that the people who put this stuff together in the first place, are still around.

Filed Under: charles falconer, david miranda, jim sensenbrenner, journalism, patriot act, terrorism act, uk