Senate Measure Would Expand FBI’s Power to Target Internet Thought Crimes Under Guise of Fighting Terrorism

FBI Director James Comey

The Senate Select Committee on Intelligence approved a measure in the 2016 intelligence authorization bill, which would require social media websites and email services to flag “terrorist activity” for the FBI and other law enforcement and security agencies.

According to the Washington Post, the measure would not “require companies to monitor their sites if they do not already do so.” It would apply to “electronic communication service providers,” and ensure they report videos or other content posted by “suspected terrorists.”

The expansion of power, which would increase the government’s power to undermine freedom of expression, is supposedly not supported by “industry officials” from companies like Facebook, Google, and Twitter.

From the Post:

…“Asking Internet companies to proactively monitor people’s posts and messages would be the same thing as asking your telephone company to monitor and log all your phone calls, text messages, all your Internet browsing, all the sites you visit,” said one official, who spoke on the condition of anonymity because the provision is not yet public. “Considering the vast majority of people on these sites are not doing anything wrong, this type of monitoring would be considered by many to be an invasion of privacy. It would also be technically difficult.”…

Government officials may claim it is necessary for the fight against the Islamic State and other terrorist groups. However, what the measure would do is increase the capability of the United States security state to engage in preemptive prosecution—to target and prosecute individuals or organizations who have beliefs, ideology, or a religious affiliations which make them a person of interest for the government.

For example, consider the case of Tarek Mehanna, who is currently serving a seventeen and a half-year prison sentence after he was convicted of material support for terrorism in December 2012.

Mehanna was “born in the United States to Egyptian immigrant parents and grew up outside of Boston. He became a devout Muslim who was fiercely critical of US foreign policy, especially in Muslim countries,” Amna Akbar wrote for The Nation. “He believed deeply in the right of Muslims living in Muslim-majority countries to defend against foreign occupation. And he talked about it. He subtitled “jihadi” videos; he translated an archaic oft-translated Arabic text 39 Ways to Serve and Participate in Jihad [by Anwar Al-Awlaki]; and he engaged in religious and political debate online through instant messages, emails and web postings.”

Mehanna took a trip to Yemen in 2004 for “religious and language instruction.” The government has conceded there were no terrorism training camps in Yemen. Still, the government maintained he traveled to Yemen to train with a terrorist group.

The FBI began to spy on him in 2005 and attempted to turn him into an informant. When Mehanna refused, the FBI pledged to make his life difficult. Mehanna continued to translate texts, including various works about jihad by Afghan and Iraqi scholars. He posted them to his website, along with poetry and other writings. Mehanna was arrested in 2008 and charged with “conspiracy to give material support to terrorism by translating radical Arabic writings into English and posting them on his website,” according to the Project for the Support and Legal Advocacy of Muslims (Project SALAM).

Mehanna never acted under the direction of Al Qaeda yet the government insisted in court that his work had been intended to “inspire others to engage in violent jihad.” In fact, as Akbar noted, at no point did the government present evidence that Mehanna had provided support to any designated terrorist organization. There was no evidence that his translations caused harm. There was no evidence that his translation had incited “imminent criminal conduct.” What he was convicted of committing was inspiring others to “support opinions the United States government finds objectionable,” particularly opinions related to radical Islamic thought.

In 2013, Mehanna’s appeal was denied, which further solidified the power government prosecutors have to target people for speech and expression deemed dangerous. He is serving his sentence in a “communications management unit” in a prison in Terre Haute, Indiana, which means he is living in conditions of solitary confinement and confined to a cell 23 hours a day.

Mehanna’s postings would undoubtedly fall in the category of activity the FBI and other security agencies would want internet companies to flag, even though there was no explicit intent to incite any violence whatsoever. (more…)

Legal Organization Representing WikiLeaks Submits Report for UN Official’s Review of Whistleblower Protections

CCR Logo
Center for Constitutional Rights Logo

The Center for Constitutional Rights (CCR), a legal organization based in New York which represents WikiLeaks and its editor-in chief Julian Assange, has submitted a report to help United Nations Special Rapporteur David Kaye complete his review on the global issue of whistleblowers and the protection of sources.

Kaye serves as the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. The review addresses how human rights law should protect journalists from having to disclose their sources and how whistleblowers are or are not protected, especially after exposing human rights violations, corruption or other abuses.

Part of the review includes a kind of survey of all governments in the world asking them how journalists are protected from being compelled to reveal sources and how whistleblowers are afforded protections. It also asked for non-governmental organizations to share their views and studies.

CCR is uniquely positioned to provide insights, given that it represents a media organization which has endured an ongoing and unprecedented investigation by the United States government into the publication of documents provided by US military whistleblower Chelsea Manning.

The legal organization asserts in its submission [PDF], “States have an obligation to protect whistleblowers, a vulnerable group that faces systematic stigmatization as a result of exercising fundamental rights to access and obtain information.”

State governments also “have a positive obligation to promote freedom of expression through cyber laws, and must not use technical violations to punish whistleblowers,” CCR argues.

“There is a serious risk that cyber laws will displace secrecy laws as a tool to prosecute whistleblowers on basis of their activities accessing and obtaining information. In the United States, the cases of Chelsea Manning, NSA whistleblower Thomas Drake, and WikiLeaks reveal the application of “unauthorized access” computer laws to punish whistleblowers and publishers.”

The legal organization adds, “Today significant amounts of access to information, particularly by whistleblowers, is enabled by computers. Whistleblowers must not be punished for using a computer to blow the whistle. Cyber laws sanctioning whistleblowers or sources who already have access to computers, purely based on their intent to blow the whistle, raise serious problems for freedom of expression.”

The US government has prosecuted whistleblowers for violating the Espionage Act and disseminating information. In these cases, the intent of the whistleblower does not matter to prosecutors and judges. What matters is that a secrecy agreement was breached.

CCR kept close watch as the court-martial of Manning unfolded, even bringing a lawsuit on behalf of media organizations and journalists (including this one) to force the US military to be more transparent and make court-martial records available to the press. It struggled against secrecy, but one military court denied a request for relief, a military appeals court claimed to lack jurisdiction, and a federal court refused to hear the case. Finally, the military decided to start publishing documents to an online “reading room” that the press and public could access.

As an example of how whistleblowers are vulnerable to abuse, CCR recalls how UN Special Rapporteur on Torture Juan Méndez decided “Manning was subject to cruel, inhuman and degrading treatment while detained in pretrial custody.”

Manning wrote about her time in pretrial detention in Kuwait:

“At the very lowest point, I contemplated castrating myself, and even – in what seemed a pointless and tragicomic exercise, given the physical impossibility of having nothing stable to hang from – contemplated suicide with a tattered blanket, which I tried to choke myself with,” she recounted for The Guardian. (more…)