Homeland Security Watch

News and analysis of critical issues in homeland security

March 19, 2010

Combating the Terrorists Online

Earlier this week, I wrote – Is the Internet Creating Terrorists? – in recognition of the modern Internet’s 25th birthday.  In that piece, I asked whether the Internet has enabled terrorists to increase their recruiting efforts and what does it mean for law enforcement.  Yesterday, Christopher Bellavita wrote an interesting related piece, Could terrorists on the internet be the next dot com bubble?, exploring Marc Sageman’s book Leaderless Jihad, and its analysis of potential Internet radicalization.  Chris’ conclusion, if I may simplify,is that there may be less of a link between the Internet and radicalization than expected.  He approached the issue from a different angle than I did – reviewing, in part, the lack of a correlation between countries that access extreme websites and countries that produce foreign fighters.   He does caution that without a critical analysis of claims and evidence demonstrating that the Internet is creating terrorists, we may end up wasting resources on the wrong problem.

So, what is the federal government doing to analyze the use of the Internet as a potential terrorist recruitment, dissemination, and tool for terrorism? Obviously, with proper procedures and legal process, the government can monitor non-public sites promoting criminal behavior.  We will leave out of the discussion scenarios of what our cloak and dagger friends may be doing.

Also not discussed here are the legislative and legal procedures at the federal level for tracking an individual’s use of the Internet if criminal or security implications exist.  The intricacies of surveillance policy – bother criminal and intel-related – is a topic that alone fills many a blog.

Instead, this post focuses on what potential government action exists to address the potentially offending websites that are disseminating terrorist information and/or inciting terrorist activity.  In doing so, I admittedly am taking a simplified approach to a complicated subject but hope to at least start a dialogue on the issue.

As far as I am aware, there is no public analysis that explores the degree to which the U.S. is generally monitoring public websites and communications on open blogs, social networks, and the like, though we know such efforts are underway in some form or fashion.  Just last month, the Department of Homeland Security undertook a Privacy Impact Assessment for the “Office of Operations Coordination and Planning, 2010 Winter Olympics Social Media, Event Monitoring Initiative.” The PIA assessed a number of DHS activities in preparation for the Vancouver Olympics, including the monitoring of social media websites (including this site) to “provide situational awareness and establish a common operating picture.”

In 2008, the Senate Committee on Homeland Security and Governmental Affairs released a report, Violent Islamist Extremism, The Internet, and the Homegrown Terrorist Threat,  which touched upon the government’s response capability.  The report stated:

Despite recognition in the [National Implementation Plan] that a comprehensive response is needed, the U.S. government has not developed nor implemented a coordinated outreach and communications strategy to address the homegrown terrorist threat, especially as that threat is amplified by the use of the Internet. According to testimony received by the Committee, no federal agency has been tasked with developing or implementing a domestic communications strategy.

Shortly after the report was released, Committee Chairman Joe Lieberman sent a letter to Google Chairman and CEO Eric Schmidt saying that the company needed to take extensive steps to remove videos from YouTube that promoted terrorism.  While YouTube is hardly a terrorist-sponsored site in and of itself,  Lieberman found that some videos posted on the sharing site “provide weapons training, speeches by Al-Qaeda leadership, and general material intended to radicalize potential recruits.”  While Google removed a number of videos that violated its own guidelines,  Lieberman continued to raise concerns with additional videos that remained on the site.

Lieberman’s actions were met with criticism from civil rights and First Amendment advocacy groups, who saw it as an attack on the First Amendment and the Constitution. Others balked at the potential for censorship of content on the Internet.

The First Amendment, at least with regards to acting on and removing materials from sites, is one of the biggest challenges facing the federal government.  Those hosting websites may loathe removing or censoring sites without some legal process served by authorities,  a process that requires a determination of a specific illegal act, or without a clear violation of their contractual agreements with site owners.   In looking at the offending act for terrorist sites, part of the challenge goes back to an issue that Homeland Security Watch discussed in great detail several weeks ago – what is terrorism and what constitutes a criminal (or national security) act?  Do lone wolf sites suffice?  Does it have to be linked to a terrorist group?  How does the government meet the threshold of a terrorist act when it involves online speech?

Of course, there may be ways to avoid the “what is terrorism” definition for potential acts by looking at other laws, especially if criminal activity is evident.  For example,  in 1996, Senator Diane Feinstein included in the Omnibus Anti-Terrorism Act a provision that required the Justice Department to produce a report analyzing the extent to which bomb-making instructions are available in the U.S. via various forms of media.  The Justice Department issued a report in April 1997 stating that laws restricting the dissemination of the media could be constitutional if narrowly-crafted.    Senators Feinstein and Orrin Hatch included an amendment on the Violent and Repeat Juvenile Offender Accountability and Rehabilitation Act that prohibited teaching or showing how to make explosives with the intent that the information will be used to  commit a federal crime.   Consequently, if a potential terrorist site shows how to make explosives and IF intent can be shown that the site’s owners planned for individuals to use that information to commit a violent crime, then legal process could be attainable.  Likewise, if specific links to fraud, money laundering, or inciting specific incidents of violence are evident, there potentially could be legal action in those cases.

Even then, however, if the sites are hosted outside the U.S., the issues become murkier and require international cooperation, perhaps with nations with different norms, standards, and definitions of criminal and national security acts than the U.S.

Complicating the situation even more — if  a site is successfully knocked off a hosting company’s server,  it is very easy to migrate and move a site to a new location.  Indeed, in testimony before Lieberman’s Committee in May 1997, Lt. Col. Joseph H. Felter, U.S. Army director of the Combating Terrorism Center at the U.S. Military Academy, testified that “[a]ttempts to shut down websites have proven as fruitless as a game of whack-a-mole.”

The government actions above, however, assume that law enforcement or security officials want a site to be removed. There may be instances where the preferred action is to leave something up as it may be valuable for intelligence or evidence gathering reasons.

Tackling terrorism online is not one that the U.S. alone is facing.  Just last month, the United Kingdom’s Association of Chief Police Officers created a unit for fighting online terrorism activity, complete with a portal for citizens to report suspected sites.  Other nations that do not provide the same free speech protections have taken similar actions for a variety of criminal security activities, including those related to hate speech.

In short, the challenges for government action against terrorist sites “generally” are many and raise serious constitutional and legal hurdles, both here and abroad.  Of course, we still most determine the extent to which terrorism-promoting sites are a problem – and that, in and of itself, may be our biggest challenge.

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Comment by William R. Cumming

March 20, 2010 @ 12:46 am

Ah the need for cyber sleuths to work for the gummit seems to be overwhelming other priorities. This excellent post raises some of the questions and difficulties about the new “virtual” no man’s land [no woman’s land?] that technology has raised.
What I find interesting is despite the concensus on defending and sleuthing the virtual frontier there can only be the conclusion that if it is being done effectively by the government not much is known about it. With some estimates that up to 80% of internet traffic is porn and other potential problem areas what is fascinating is that so little is researched on this new virtual reality. My only explanation can be that many making money off of the “next” frontier or who are able to manipulate it already have skillfully escaped detection. So DARPA helps create the Internet and now low and behold it turns out possibly it created a new weapon? Great post Jessica, thoughtful and discloses some history I was not aware of and useful insights. By the way I always found it amusing that the “DNA” sleuth in the movie “Gattica” with Ethan Hawke and Uma Thurman found the eyelash evidence on a computer keyboard. Perhaps he should also be equipped to follow on looking at that keyboards “memory”?

Comment by William R. Cumming

March 20, 2010 @ 7:59 am

I meant to note the sentence above in the post:

“The First Amendment, at least with regards to acting on and removing materials from sites, is one of the biggest challenges facing the federal government”

I assume this is meant to indicate that the Internet cannot be regulated in any way because of 1st amendment to the Constitution.

That amendment reads:

“Congress shall make no law respecting an establishment of religion, or prohibitng the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Now Jessica might be right. But an argument could be made that the Communications Act of 1934 could be modified to allow some regulation of the internet under the Commerce Clause. Until the WISP program [Wartime Information Security Program] was developed by DOD during the Viet Nam era there was a huge concern over censorship of military operations and conduct. Today censorship is always conducted in combat zones even without a declaration of war and even photos of coffins was not challenged. As many readers of this blog know, I think it will be another decade before we have some comfort that SCOTUS has take on the issues raised by 9/11. Now with the prospects that the Obama Adminstration’s major contribution might be three more appointments to SCOTUS this whole arena will require huge amounts of critical thinking and its application to those problems, especially by the federal judiciary. Fear of action being overturned by the slow and sometimes sure process of judicial review IMO seldom seems to stop or even cause much of a pause to reflect on Constitutional issues. I have sought for a long time for Congress to adopt a “pursuant to” clause for each piece of legislation, taking a first cut at its
Constitutionality. This does not prohibit Congress from also adopting severance clauses and allowing other Constitutional support to be raised but it would give all the polity of the US a better sense that Congress, which often passes legislation without reading it, a chance to reflect on what it is doing.

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