Internet Surveillance and Free Speech: The UN Makes The Connection

Frank La Rue, the United Nations Special Rapporteur on Freedom of Expression and Opinion delivered this week a landmark report [PDF] on state surveillance and freedom of expression. In preparation, the Special Rapporteur reviewed relevant studies, consulted with experts including EFF, and participated in the state surveillance and human rights workshop we organized last year.  Today, EFF's Katitza Rodriguez has been taking part in the first detailed conversation about State Surveillance and Human Rights at the U.N., held by the 47 member states of the Human Rights Council during the U.N.'s 23th session in Geneva.

At a time when efforts by states to conduct communications surveillance are rapidly proliferating across the globe, La Rue makes the case for a direct relationship between state surveillance, privacy and freedom of expression:

The right to privacy is often understood as an essential requirement for the realization of the right to freedom of expression. Undue interference with individuals’ privacy can both directly and indirectly limit the free development and exchange of ideas. … An infringement upon one right can be both the cause and consequence of an infringement upon the other.

La Rue’s landmark report could not come at a better time. The explosion of online expression we've seen in the past decade is now being followed by an explosion of communications surveillance.  For many, the Internet and mobile telephony are no longer platforms where private communication is shielded from governments knowing when, where, and with whom a communication has occurred.  

The report acknowledges the benefits of technological innovations that have enabled rapid, anonymous, cross-cultural dialogues around the world. Nevertheless, the report warns that these same technologies can open a Pandora's box of previously unimaginable state surveillance intrusions.

“The Internet has facilitated the development of large amounts of transactional data by and about individuals. This information, known as communications data or metadata, includes personal information on individuals, their location and online activities, and logs and related information about the e-mails and messages they send or receive.”

The report explains how metadata can reveal sensitive information that can be easily accessed, stored, mined and exploited.

Communications data are storable, accessible and searchable, and their disclosure to and use by State authorities are largely unregulated.  Analysis of this data can be both highly revelatory and invasive, particularly when data is combined and aggregated. As such, States are increasingly drawing on communications data to support law enforcement or national security investigations. States are also compelling the preservation and retention of communication data to enable them to conduct historical surveillance.”

As La Rue indicates, it is the capacity of new technologies to instantly aggregate and analyze data makes it a beacon of one’s online presence. EFF believes that “metadata”1—information logging individuals’ communication activities—is as sensitive as the content of communication and therefore deserves strong human rights protections.

For example, with all the amount of information and evolving surveillance technologies, law enforcement agencies now can:

• Directly observe people's relationships and interactions and make inferences about their intimate and protected relationships. 
• Examine millions of people's communications and rapidly identify precise communications interactions on any given topic.
• Track any person's physical movements almost all of the time and draw conclusions about one’s professional, sexual, political, and religious activities, and attitudes from individuals' associations and Internet traffic.
• Routinely retain data for decades, so that statements and interactions can be searched, analyzed, and recalled long after they have been made. 
• Do all of the above simultaneously.

La Rue reminds States that in order to meet their human rights obligations, they must ensure that the rights to free expression and privacy—and metadata protection in particular—are at the heart of their communications surveillance frameworks. To this end, the Special Rapporteur urges states to review national laws regulating surveillance and update and strengthen laws and legal standards:

Communications surveillance should be regarded as a highly intrusive act that potentially interferes with the rights to freedom of expression and privacy and threatens the foundations of a democratic society.

Legislation must stipulate that State surveillance of communications must only occur under the most exceptional circumstances and exclusively under the supervision of an independent judicial authority.

   

At present, access to communications data has been conducted by a variety of public bodies for a broad range of purposes, often without judicial authorization and independent oversight. Such overbroad access threatens basic democratic values.

La Rue recommends that legal frameworks to ensure that communication surveillance measures:

Are prescribed by law, meeting a standard of clarity and precision that is sufficient to ensure that individuals have advance notice of and can foresee their application,

Are strictly and demonstrably necessary to achieve a legitimate aim,

Adhere to the principle of proportionality, and are not employed when less invasive techniques are available which have not yet been exhausted.

EFF could not agree more that individuals have a legal right to be notified when they have been subjected to communications surveillance and have had their communications data accessed by the state. We celebrate La Rue’s invaluable recommendations and will begin immediately using his report in our own advocacy work throughout the world. EFF will continue to blog about additional findings in the La Rue's report in the following days.

You can access the report delivered by Frank La Rue to the Human Rights Council here:

http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A.HRC.23.40_EN.pdf

State Surveillance Around The World

States around the world are demanding private data in ever-greater volumes—and getting it. They are recognizing the treasure troves of personal information created by modern communications technologies of all sorts, and pursuing ever easier, quicker, and more comprehensive access to our data. They are obtaining detailed logs of our entire lives online, and they are doing so under weaker legal standards than ever before. Several laws and proposals now afford many states warrantless snooping powers and nearly limitless data collection capabilities. These practices remain shrouded in secrecy, despite some private companies’ attempts to shine a light on the alarming measures states are taking around the world to obtain information about users.

To challenge the sweeping invasions into individuals’ personal lives, we’re calling on governments to ensure their surveillance policies and practices are consistent with international human rights standards. We’re also demanding that governments and companies become more transparent about their use of the Internet in state surveillance. 

Signs of Growing International Surveillance in 2012

• A new law in Brazil allows police and public prosecutors to demand user registration data from ISPs directly, via a simple request, with no court order, in criminal investigations involving money laundering. And, a new bill seeks to allow the Federal Police to demand registration data of Internet users in cases of crimes without the need of a court order nor judicial oversight.

• Colombia adopted a new decree that compels ISPs to create backdoors that would make it easier for law enforcement to spy on Colombians. The law also forces ISPs and telecom providers to continuously collect and store for five years the location and subscriber information of millions of ordinary Colombian users.

• Leaked documents revealed that the Mexican government shelled out $355 million to expand Mexican domestic surveillance equipment over the past year.

• The Canadian government put proposed online surveillance legislation temporarily "on pause" following sustained public outrage generated by the bill. The bill introduces new police powers that would allow authorities easy access to Canadians’ online activities, including the power to force ISPs to hand over private customer data without a warrant.

• The EU’s overarching data retention directive has become a dangerous model for other countries, despite the fact that several European Courts have declared several national data retention laws unconstitutional.

• Romania went ahead with adopting a new data retention mandate law without any real evidence or debate over the right to privacy, despite the 2009 Constitutional Court ruling declaring the previous data retention law unconstitutional.

• The German government is proposing a new law that would allow law enforcement and intelligence agencies to extensively identify Internet users, without any court order or reasonable suspicion of a crime. This year, more details were found on German State Trojan Program to spy on and monitor Skype, Gmail, Hotmail, Facebook and other online communications.

• The UK government is considering a bill that would extend the police’s access to individuals' email and social media traffic data. The UK ISPs will be compelled to gather the data and allow the UK police and security services to scrutinize it.

• A Dutch proposal seeks to allow the police to break into foreign computers and search and delete data. If the location of a particular computer cannot be determined, the Dutch police would be able to break into it without ever contacting foreign authorities. AnotherDutch proposal seeks to allow the police to force a suspect to decrypt information that is under investigation in a case of terrorism or sexual abuse of children.

• In Russia, several new legal frameworks or proposed bills enable increased state surveillance of the Internet.

• Australian law enforcement and intelligence agencies have continued to advance the false idea of the need for data retention mandates, mandatory backdoors for cloud computing services and the creation of a new crime for refusing to aid law enforcement in the decryption of communications.

• A controversy arose in Lebanon over revelations that the country's Internal Security Forces (ISF) demanded the content of all SMS text messages sent between September 13 and November 10 of this year, as well as usernames and passwords for services like Blackberry Messenger and Facebook.

• The Rwandan Parliament is discussing a bill that will grant sanctions the police, army and intelligence services the power to listen to and read private communications in order to protect "public security", the keyword often invoked to justify unnecessary human rights violations.

• Pakistan adopted a Fair Trial Bill authorizing the state to intercept private communications to thwart acts of terrorism. No legal safeguards have been built in to prevent abuse of power and the word "terrorism" has been poorly defined (a word that's often invoked to justify unnecessary human rights violations).

• RIM announced that they had provided the Indian Government with a solution to intercept messages and emails exchanged via BlackBerry handsets. The encrypted communications will now be available to Indian intelligence agencies.

• The Indian government approved the purchase of technological equipment to kickstart the National Intelligence Grid (NATGRID)—a project that seeks to link databases for ready access by intelligence agencies. The project is expected to facilitate "robust information sharing" by security and law enforcement agencies to combat terror threats.

Moving Forward

EFF's international team and a coalition of civil society organizations around the world have drafted a set of principles that can be used by civil society, governments and industry to evaluate whether state surveillance laws and practices are consistent with human rights. In 2013, we will continue demanding that states adopt stronger legal protections if they want to track our cell phones, or see what web sites we’ve visited, or rummage through our Hotmail, or read our private messages on Facebook, or otherwise invade our electronic privacy. EFF will keep working collaboratively with advocates, lawyers, journalists, bloggers and security experts on the ground to fight overbroad surveillance laws. Our work will involve existing legislative initiatives, international fora, and other regional venues where we can have a meaningful impact on establishing stronger legal protections against government access to people’s electronic communications and data.

Via: "The Electronic Frontier Foundation"

Sharing Knowledge and Culture Is The Natural State

Just as some misguided people react with hostility to the fact that the copyright monopoly is not a birthright, they can react with hostility and demand a response to how sharing is “justified”. This, too, is misguided.

One example could be seen in the Reddit thread about The Pirate Bay being the world’s most efficient public library. For a while, the top comment was “whatever helps you justify it” (as in, “invent whatever excuse you like to try justifying the sharing of culture”). This is a misguided expression based on the false premise that sharing knowledge and culture needs to be justified.

It is completely the other way around.

Humankind and civilization have advanced due to and because of people sharing knowledge and culture, and humankind has never advanced when culture and knowledge have been locked up and contained. Sharing knowledge, information, and culture is also a good deed on an individual-to-individual basis. Whenever the ability to share and partake in knowledge and culture has been prevented, such as the burning of the library at Alexandria, it has always been regarded as a disaster for humanity in the history books.

And yet, some people believe that sharing – whether over The Pirate Bay, direct handover, or whatever other mechanism – needs to be justified.

It is true that the copyright monopoly has come at odds with the natural behavior of sharing and the right to share. But to enforce this monopoly, much more vital ideas in society – such as the postal secret – must be sacrificed, not to mention our cultural heritage. That is neither just nor reasonable, so that is what needs justification. It’s not just the copyright monopoly law itself that needs to be justified, but also individual compliance with the unjust monopoly law, on a case-by-case basis.

When somebody angrily asks you how you can share this and that knowledge “without permission”, state it as it is, that they are misguided, and ask how they could possibly justifyrequiring permission to share knowledge and culture. That goes counter to all of humanity’s history. Also, make sure to make a point that sharing never requires any kind of justification. (The current copyright monopoly laws are not enough of a justification, obviously, as they are unjust and completely out of touch with people’s actual and natural behavior.)

Sharing knowledge and culture is the natural state.

Therefore, any restrictions on sharing require very careful and strict justification.

Via: "Falkvinge"

Online Freedom: Who Should Control What?

Delegates from 193 countries are meeting in Dubai to discuss the future of the internet. They will be negotiating a new International Telecommunications Treaty - which has not been updated since 1988.

The main debate at the conference is over internet freedom. The US and Europe want less internet regulation, while countries like Russia and China are accused of wanting more.

But the possibly bigger question of who controls the internet is also in play. The US in particular is criticised for dominating the way the internet is run.

Since 1947 a UN body called the International Telecommunication Union (ITU) has been in charge of international technical standards.

Delegates from 193 countries have regulated everything from radio frequencies to satellite orbits. Their mission is to make sure networks and technologies easily interconnect. But according to internet giant Google, the ITU could be about to take steps to reduce the free flow of information on the web.

"There is a mood to change the governance structure of the internet from one that is multi-stakeholder system to one that is inter-governmental. And I think the fear is that the internet repression and censorship that is already going and the throttling of the speed of communication and widespread surveillance in certain countries will be legitimised if they change the system." - Richard Rogers, University of Amsterdam

It says if proposals being heard at the ITU conference in Dubai are accepted, there will be an increase in censorship and national regulation.

But other countries censor content on the internet as well.

Known as the 'Great Firewall of China', the People's Republic has perhaps the world's most impressive example of online control. In addition to banning social networking sites, China also has tens of thousands of monitors who snoop and often hack into people's emails.

Following protests in 2009, the Iranian government intensified its efforts to censor the web. It has rounded up and jailed bloggers and internet dissidents. The country also often shuts down access to the internet when it expects anti-government protests.

In Belarus, the government has also noticed the opposition's use of the internet. Websites are sometimes blacked out, opposition voices are monitored and the government even uses websites like Twitter to intimidate journalists and activists.

And last month, the United Arab Emirates showed where it stands on internet censorship. It issued a decree making it a crime to insult or criticise the country's leaders online.

We ask should limits be placed on the web? And if so, how and by whom? What does it all mean for freedom of speech online and is it being threatened with over-regulation?

Photographers In LA Considered Terrorists Under Official LAPD Policy

The next time a tourist snaps a picture of the famous Hollywood sign, their photo won’t be the only item added to the annals. The LAPD considers photography a suspicious activity, and trying to take certain shots may add a page to your personal file.

A memo released last month by Police Chief Charlie Bucks re-categorizes certain behaviors — including photo shoots in public spots — to constitute suspicious activity, which is enough to have cops file a report, open an investigation and forward any further information about a suspect to the federal authorities — all over just an itchy shutter finger.

In an interdepartmental statement dispatched on August 16, Beck writes, “Taking pictures or videos of facilities/buildings, infrastructures or protected sites in a manner that would arouse suspicion in a reasonable person”is enough of a red flag to have authorities file a suspicious activity report, or SAR. According to departmental policies, those SAR files are then sent into a Consolidated Crime and Analysis Database (CCAD), where they are occasionally added to a Crime Analysis Mapping System (CAMS) for further investigation. From there, intelligence can be stored in a Information Sharing Environment (ISE) Suspicious Activity Reporting (SAR) Shared Space and accessed at fusion centers across the country, such as the LA area’s Joint Regional Intelligence Center, where other intel is interpreted, dissected and divulged by agencies like the FBI and the US Department of Homeland Security.

In a 2010 evaluation conducted by the US Justice Department, the DoJ writes, “Ultimately, the ISE-SAR EE, through the use of the Shared Spaces concept, provides a solution for law enforcement agencies to share terrorism-related suspicious activity information, while continuing to maintain control of their data through a distributed model of information sharing.”(.pdf)

Further in the report, the Justice Department determined that “The FBI and DHS should continue to support the interface with the Shared Space environment to allow continue ease of sharing SAR data with all law enforcement agencies,” which now includes any reports written up for something as boring as a blurry snapshot. Under the LAPD’s 2008 guidelines, taking photographs or video footage “with no apparent esthetic value” could warrant filing a SAR, but the department has now broadened what they considered potential terroristic activity. 

According to the latest LAPD memo, the office notes that the suspicious behavior included on their updated list is“generally protected by the First Amendment” and should not be reported in a SAR, but could be considered if the witness thinks the action in question is “reasonably indicative of criminal activity associated with terrorism,” an explanation that is as broad and open ended as the NDAA, the federal legislation signed last year that lets the government imprison Americans without charge over suspected ties with affiliates of al-Qaeda.

On the official website of the American Civil Liberties Union, the ACLU writes, broadly speaking, “Taking photographs of things that are plainly visible from public spaces is a constitutional right… Unfortunately, there is a widespread, continuing pattern of law enforcement officers ordering people to stop taking photographs from public places, and harassing, detaining and arresting those who fail to comply."

University of Chicago law professor Geoffrey Stone tells the Center for Investigative Reporting that just as any civilian can shoot photos in public spaces, though, surveillance from the authorities is allowed as well. “This would be constitutional under existing law, as long as the government is not doing this in a discriminatory manner,” Stone says.“There may be some constitutional limitations on the government’s use or preservation of such information, but at present, such limitations do not exist, except perhaps in truly egregious circumstances.”

In the days after the latest memo was made public, a backlash directed at the LAPD forced the police commission to establish a five-member civil oversight panel to decide on a set of guidelines for when SARs can be written. The Los Angeles Times reports that the panel unanimously approved an order that will continue to allow officers to write up SARs on any activity that can be interpreted, somehow, as a terroristic threat, however, and things don’t end there either.

Trying to take a picture isn’t the only action being elevated to the level of potential-terrorism in LA. In last month’s memo, Chief Bucks writes, “Demonstrating unusual interest in facilities/buildings, infrastructures or protected sites beyond mere casual or professional (e.g., engineers) interest, such that a reasonable person would consider the activity suspicious.” Examples, he adds, include observations through binoculars, taking notes and attempting to measure distances.

Days after the LAPD memo was made public, Deputy Chief Michael Downing, commanding officer of the LAPD’s counter-terrorism unit, told members of the media, “In this region we have active terrorist plots, in this region, right now,” although authorities have not corroborated those claims with details for the public yet. Chief Downing later told the Times that he was unaware of any specific terrorism plot aimed at targeting the city, but was adamant that law enforcement should be on the ready to handle any reports.

The lengths at which they will go to in an effort to stay ahead of the game has others worried scared, though.

"We ought to be ashamed of ourselves," National Lawyers Guild attorney Jim Lafferty tells the Times.

In an op-ed published this week in the Huffington Post, Yaman Salahi of the American Civil Liberties Union says the LAPD’s latest memo makes it so that cops can consider “Anyone snapping a photograph or taking notes in a public place [as] a potential threat to public safety.”

“This kind of information sharing might sound good in theory, but a recent study from George Washington University, co-authored by the LAPD's very own Deputy Chief Michael Downing, the head of the LAPD's Counter-Terrorism and Special Operations Bureau, found that suspicious activity reporting has ‘flooded fusion centers, law enforcement, and other security entities with white noise.’ In practice, the profusion of SAR reports ‘complicates the intelligence process and distorts resource allocation and deployment decisions,’" Salahi writes. “The head of LAPD's own counterterrorism bureau knows that low value SAR reports hurt counterterrorism efforts more than they help. So we should ask the LAPD to take the simple steps necessary to protect our free speech and privacy rights, and to stop harassing people engaged in perfectly lawful – and often, constitutionally protected – activities.”

Because the LAPD is now narrowing their eyes to focus in on suspicious activity at critical infrastructure sites, seemingly normal behavior anywhere — from power plants and theme parks to even a basketball game — can get you in trouble. In 2004, then Mayor Jim Hahn said, “Los Angeles’ critical infrastructure goes beyond power plants and water mains and includes facilities like Staples Center, which generates millions of dollars for our economy and is, thanks to the Lakers, an internationally-known symbol of Los Angeles.”

LA was awarded $3 million that year through the Urban Area Security Initiative Operation Archangel grant to protect its infrastructure, including the Staples Center, Disneyland and Hollywood Boulevard, and began their involvement in the Nationwide Suspicious Activity Reporting (SAR) Initiative (NSI) a few years later.

As RT wrote earlier this year as part of their ongoing investigation into the TrapWire surveillance system, the portal on the LAPD’s website that allows for civilians to contribute anonymous SARs is linked with an international intelligence database, as are surveillance cameras across the city. The iWatch reporting program has also been picked up in Washington, DC, where emails perpetrated to have been hacked from the servers of Strategic Forecasting last year suggest that the police department and closed-circuit cameras across the nation’s capital are tied to TrapWire as well. Intelligence collected in those instances are also fed to nationally-run fusion centers.

Via: "Russia Today"

Controlling The Web

In January 2012, two controversial pieces of legislation were making their way through the US Congress. SOPA, the Stop Online Piracy Act, and PIPA, the Protect Intellectual Property Act, were meant to crack down on the illegal sharing of digital media. The bills were drafted on request of the content industry, Hollywood studios and major record labels.

The online community rose up against the US government to speak out against SOPA, and the anti-online piracy bill was effectively killed off after the largest online protest in US history. But it was only one win in a long battle between US authorities and online users over internet regulation. SOPA and PIPA were just the latest in a long line of anti-piracy legislation US politicians have passed since the 1990s.

"One of the things we are seeing which is a by-product of the digital age is, frankly, it's much easier to steal and to profit from the hard work of others," says Michael O'Leary, the executive vice-president for global policy at the Motion Picture Association of America (MPAA).

The US government says it must be able to fight against piracy and cyber attacks. And that means imposing more restrictions online. But proposed legislation could seriously curb freedom of speech and privacy, threatening the internet as we know it.

Can and should the internet be controlled? Who gets that power? How far will the US government go to gain power over the web? And will this mean the end of a free and global internet?

Democracy Without Secrets

0.

• Nulpunt is a web application that aggregates all documents produced by the Dutch government and the public sector into an online database.
• Nulpunt asks users to register with this database and subscribe to feeds on topics of government information that he or she is interested in. From that moment on the user has access to all government documents relevant to the selected topics.
• Nulpunt makes it possible for registered users to comment on and share elements from these documents through third party social media and other channels.
• Nulpunt also provides the option to follow the activities of other users.

In the past years we have witnessed the development of an international democratization movement. From WikiLeaks to Occupy, from the Pirate Party to Anonymous, the demand for transparent government and political self-organization has become evident. We call this the demand for a democracy without secrets.

The Netherlands today has a basic transparancy law. In English it’s called: the Law on Transparancy of Public Authorities [Dutch: “Wet Openbaarheid van Bestuur (WOB)”]. Conceived in 1980, it specifies how citizens requests for government policy information are to be dealt with when related to matters of public interest. But the law is seriously outdated, a product of the pre-digital era and embodying a traditional authoritarian bureaucratic culture in which access to information is seen as a favor to citizens, and not as their right. Responses to requests for information are structurally delayed and habitually negative, forcing the requesting party to enter expensive legal battles. A request for information can easily take up one-and-a half years or more. Access is easily denied, as the grounds for refusal are broad and lend themselves to abuse.

A new Freedom of Information Act is in the making. This law enshrines public access to information as a citizen's right, and impels public authorities to make government information widely, and quickly, accessible in a digital format. It broadens the scope of the information to be made accessible, to include all information held by public bodies or private bodies with a public mandate or financed by taxpayers money. If government nevertheless wishes to keep information secret, this exemption will have to be justified on a case by case basis. The new law will guarantee that in the future all public documents produced by government will be automatically accessible, and that these will be stored in a permanent electronic record. These are the first steps to what we call the Leaking State [Dutch: “De Lekkende Overheid”].

The problem is that in the hands of government this new law will lead to inaccessible databases. Only professional researchers will be willing and able to make their way through the dense bureaucratic thicket that obscures the information they’re looking for.

Meanwhile, the time invested daily by politically-aware citizens using social media, online forums and newspapers indicates there’s no lack of willingness for political participation. We just need a tool to enable us to do so directly.

Therefore we have developed nulpunt [“0.”], a website that works like a merge between Wikileaks and social media. In combination with the new Freedom of Information Act, nulpunt will force government to ‘leak’ all documents into its public database. Once there, users can search through this information stream, comment on, and share documents. It is a dashboard, a digital parliament, where we control and shape our politics.

As part of the registration process, the user sets up filters to limit the stream of documents to those dealing with the issues or sectors he or she is interested in. The user chooses to make his or her account either public or private. It’s here that the user also decides on the color of the marking tool: the main asset of nulpunt.

Once registered the user can start. On the left we see the inbox displaying a filtered list of documents matching the user’s interests. We can see how many comments have been added to each document by other users.

To view a document, click its title. This one relates to the Dutch government’s decision making process preceding its support of the war in Iraq in 2003. It has 24 comments attached. Each comment corresponds to a passage highlighted by one of the users. While reading the document and comments this user has become convinced there was never a legal mandate for war, meaning that it was waged illegitimately. With the marking tool the user highlights the part of the document that makes this evident, and in a comment explains why.

The new comment can be saved as a draft that only the author can see, or can be made public by clicking ‘Publish’. The user may use the 'Amplify' button to share the annotated selection to a variety of different media.

While some social media platforms try to keep users ‘locked in’ to their service, and have been known not to protect their users from governmental and commercial interests, nulpunt has been conceived as a user-friendly tool to follow and control government. Information about users is guaranteed to never be handed to third parties and nulpunt will always be a non-profit and commercial-free environment.

This is our contribution towards the only concept of democracy we deem right:
a democracy without secrets.

A project by
Jonas Staal
Metahaven (Vinca Kruk & Daniel van der Velden)

Narration
Mariko Peters

Animation
Tomasz Kaye

With thanks to
Brenno de Winter
Ernst van den Hemel
Mediafonds

This is our contribution towards the only concept of democracy we believe worthy of the name: a democracy without secrets.

[0. is a project by:
Vinca Kruk
Jonas Staal
Daniel van der Velden

39 Ways To Limit Free Speech

By David Cole
Courtesy Of "The New York Review Of Books"

Google “39 Ways to Serve and Participate in Jihad” and you’ll get over 590,000 hits. You’ll find full-text English language translations of this Arabic document on the Internet Archive, an Internet library; on 4Shared Desktop, a file-sharing site; and on numerous Islamic sites. You will find it cited and discussed in a US Senate Committee staff report and Congressional testimony. Feel free to read it. Just don’t try to make your own translation from the original, which was written in Arabic in Saudi Arabia in 2003. Because if you look a little further on Google you will find multiple news accounts reporting that on April 12, a 29-year old citizen from Sudbury, Massachusetts named Tarek Mehanna was sentenced to seventeen and a half years in prison for translating “39 Ways” and helping to distribute it online.

As Anthony Lewis was wont to ask in his New York Times columns, “Is this America?” Seventeen and a half years for translating a document? Granted, it’s an extremist text. Among the “39 ways” it advocates include “Truthfully Ask Allah for Martyrdom,” “Go for Jihad Yourself,” “Giving Shelter to the Mujahedin,” and “Have Enmity Towards the Disbelievers.” (Other “ways to serve,” however, include, “Learn to Swim and Ride Horses,” “Get Physically Fit,” “Stand in Opposition to the Disbelievers,” and “Expose the Hypocrites and Traitors.”) But surely we have not come to the point where we lock people up for nearly two decades for translating a widely available document? After all, news organizations and scholars routinely translate and publicize jihadist texts; think, for example, of the many reports about messages from Osama bin Laden.

In 2009, Tarek Mehanna, who has no prior criminal record, was arrested and placed in maximum security confinement on “terrorism” charges. The case against him rested on allegations that as a 21-year old he had traveled with friends to Yemen in 2004 in an unsuccessful search for a jihadist training camp in order to fight in Iraq, and that he had translated several jihadist tracts and videos into English for distribution on the Internet, allegedly to spur readers on to jihad. After a two-month trial, he was convicted of conspiring to provide material support to a terrorist organization. The jury did not specify whether it found him guilty for his aborted trip to Yemen—which resulted in no known contacts with jihadists—or for his translations, so under established law, the conviction cannot stand unless it’s permissible to penalize him for his speech. Mehanna is appealing.

Under traditional (read “pre-9/11”) First Amendment doctrine, Mehanna could not have been convicted even if he had written “39 Ways” himself, unless the government could shoulder the heavy burden of demonstrating that the document was “intended and likely to incite imminent lawless action,” a standard virtually impossible to meet for written texts. In 1969, in Brandenburg v. Ohio, the Supreme Court established that standard in ruling that the First Amendment protected a Ku Klux Klansman who made a speech to a Klan gathering advocating “revengeance” against “niggers” and “Jews.” It did so only after years of experience with federal and state governments using laws prohibiting advocacy of crime as a tool to target political dissidents (anarchists, anti-war protesters, and Communists, to name a few).

But in Mehanna’s case, the government never tried to satisfy that standard. It didn’t show that any violent act was caused by the document or its translation, much less that Mehanna intended to incite imminent criminal conduct and was likely, through the translation, to do so. In fact, it accused Mehanna of no violent act of any kind. Instead, the prosecutor successfully argued that Mehanna’s translation was intended to aid al-Qaeda, by inspiring readers to pursue jihad themselves, and therefore constituted “material support” to a “terrorist organization.”

The prosecutor relied on a 2010 Supreme Court decision in a case I argued,Holder v. Humanitarian Law Project. In Humanitarian Law Project, a divided Court upheld the “material support” statute as applied to advocacy of peace and human rights, when done in coordination with and to aid a designated “terrorist organization.” (The plaintiffs in the case sought to encourage the Kurdistan Workers Party in Turkey to resolve their disputes with the Turkish government through lawful means, by training them in bringing human rights complaints before the United Nations and helping them in peace overtures to the Turkish government.) The Court ruled that the government could criminalize such advocacy of peaceful nonviolent activity without transgressing the First Amendment, because, it reasoned, any aid to a foreign terrorist organization might ultimately support illegal ends.

The Humanitarian Law Project decision is troubling enough, as I have previously explained. But Mehanna’s case goes still further. The government provided no evidence that Mehanna ever met or communicated with anyone from al-Qaeda. Nor did it demonstrate that the translation was sent to al-Qaeda. (It was posted by an online publisher, Al-Tibyan Publications, that has not been designated as a part of or a front for al-Qaeda.) It did not even claim that the “39 Ways” was written by al-Qaeda. The prosecution offered plenty of evidence that in Internet chat rooms Mehanna expressed admiration for the group’s ideology, and for Osama bin Laden in particular. But can one provide “material support” to a group with which one has never communicated?

The Supreme Court in Humanitarian Law Project emphasized, as had the United States government in defending the “material support” statute, that the law does not make it a crime to engage in “independent advocacy” in support of a designated organization’s cause. Writing for the majority, Chief Justice John Roberts strongly implied that this limitation was constitutionally mandated:

The Court also finds it significant that Congress has been conscious of its own responsibility to consider how its actions may implicate constitutional concerns. Most importantly, Congress has avoided any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups.

“Under the material-support statute,” the Court insisted, people “may say anything they wish on any topic.” But apparently not on “jihad.” The prosecutor in Mehanna’s case argued that the translation was motivated by Mehanna’s ideological support of jihadism, and of al-Qaeda in particular. But without coordination, and without delivery of the final product to al-Qaeda or any of its known affiliates, it looks like nothing more than “independent advocacy,” activity that the government said would not, and the Supreme Court implied could not, be punished.

Why should those of us who have no interest in reading “39 Ways to Serve and Participate in Jihad” care? For the same reason that we should care about the prosecution of a Klansman or an anarchist for their speech. History shows that free speech is fundamental to a robust democracy, and that if the government can punish expression because of its political content, it will use that power to go after its enemies. Today’s enemy may be anyone who shows sympathy with jihadism, but who knows who tomorrow’s enemy will be. You don’t need 39 ways to unravel democracy; giving the government the power to penalize the speech it detests will do it in one.

April 19, 2012, 3:15 p.m.