“[T]he ultimate good desired is better reached by free trade in ideas....That at any rate is the theory of our Constitution.”
— Justice Oliver Wendell Holmes, dissent in Abrams v. United States, 1919
EFF has witnessed a growing number of calls in recent weeks for Twitter to ban certain accounts of alleged terrorists. In a December 14th article in the New York Times, anonymous U.S. officials claimed they “may have the legal authority to demand that Twitter close” a Twitter account associated with the militant Somali group Al-Shabaab. A week later, the Telegraph reported that Sen. Joe Lieberman contacted Twitter to remove two “propaganda” accounts allegedly run by the Taliban. More recently, an Israeli law firm threatened to sue Twitter if they did not remove accounts run by Hezbollah.
Twitter is right to resist. If the U.S. were to pressure Twitter to censor tweets by organizations it opposes, even those on the terrorist lists, it would join the ranks of countries like India, Azerbaijan, Bahrain, Syria, Uzbekistan, all of which have censored online speech in the name of “national security.” And it would be even worse if Twitter were to undertake its own censorship regime, which would have to be based upon its own investigations or relying on the investigations of others that certain account holders were, in fact, terrorists.
Let's review the various calls for Twitter to censor their site and the possible causes of action:
While the unnamed U.S. official was mum about where the “legal authority” to censor would come from, the Shurat HaDin Israel Law Center, an Israeli advocacy law firm, wrote a letter to Twitter saying they may be liable for criminal and civil prosecution for hosting accounts run by Hezbollah and other groups designated by the US Department of State as foreign terrorist organizations (FTOs) under the “material support” provisions of the Patriot Act.
Let’s start with the threat from the law firm, since it’s easily disposed of. Section 230 of the Communications Decency Act says that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." In other words, Twitter cannot be held liable in a civil action for the speech of other parties using their site. While Section 230 provides an exception for federal criminal prosecutions--meaning websites can still be prosecuted by the government for violating federal law--the 2006 case Doe v. Bates held that private parties, like the law firm, are prevented from circumventing Section 230 by premising their civil claims on criminal statutes.
Next, let’s look at Senator Lieberman. Of course a member of Congress has no actual censorship power, so he cannot himself require Twitter to block anyone. In addition, the Taliban is not on the State Department FTO list, so the Executive branch cannot demand that Twitter take any actions to censor the Taliban under the FTO laws either. According to the Telegraph, aides for Lieberman said the move was “part of a wider attempt to eliminate violent Islamist extremist propaganda from the internet [sic] and social media.” But luckily Twitter pays more attention to the First Amendment than Senator Lieberman, and has so far refused to bow to his desires. The Constitution, and a long line of judicial authority is clear that it’s not the place of a single Congressman to decide what constitutes free speech online.
For Lieberman, calling for Internet censorship is nothing new. He is the same senator who in 2010 called upon Amazon to block WikiLeaks from its servers, even though the U.S. government was constitutionally barred from censoring WikiLeaks in court. Despite having no formal power in that situation either, Lieberman set off a chain reaction that resulted in nearly a dozen intermediaries denying service to the whistle-blowing site. Since then, Lieberman has called for an Internet “kill switch,” which would hand the president unchecked power in a “cybersecurity emergency,” also to be defined by the president, and recently called on Google to institute a terrorism “flag” system to be implemented on all their blogs.
So private parties and grandstanding Congressmen cannot require Twitter to turn off accounts of those accused of terrorism. Can the Executive? As to Senator Lieberman’s threats, the Executive has not even triggered its authority to declare groups FTOs in the instance of the Taliban, so the answer is no.
As for groups that are FTOs, like Hezbollah and Al-Shabaab, some have pointed to the “material support” laws that were broadened as a result of the Patriot Act and the 2010 Supreme Court case, Holder v. Humanitarian Law Project--which held that outside groups coordinating advocacy with a known terrorist group violated the “material support for terrorism” law. While the law is written very broadly, something EFF has long criticized, it has never been interpreted by any court to reach a situation like Twitter. Indeed, in the Humanitarian Law Project case, the Supreme Court, suggested just that. The case focused on specific prohibition on providing “personnel,” “training,” and “expert advice or assistance” for a Department of State-designated terrorist group, and the Court held that the statute “cover[s] only a narrow category of speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.”
Twitter is clearly not coordinating, or under the direction of, any FTOs. The company offers a service to hundreds of millions of people, corporations and organizations. It also has no way to track everything said by every person using it, or even to know whether an account is administered by an actual FTO, as opposed to say, a person or group that simply chose that name. This puts it in a difficult position even if it did want to reach out and preemptively censor. Moreover, criminalizing, or even trying to criminalize a neutral communications service like Twitter would set a dangerous precedent --like criminalizing pens and pencils or typewriters and computers based on what people choose to say when using them.
Material support laws as interpreted by the Supreme Court are overbroad, capturing speech that would otherwise be constitutional. Yet even so, we don’t think the material support law can constitutionally reach Twitter here, nor should the Executive try to make it. This is not only because of our concern about the law and free speech, but it would be counterproductive to the government’s own interest.
THE STREISAND EFFECT
If Twitter is not required by law to ban the accounts, then shutting down these groups' accounts--no matter how odious their speech--would be a level of censorship the social networking site has heretofore avoided, and with good reason: As Wired points out, "The loss of an official Twitter account would by no means silence terrorist groups. Instead, it would make them go through the inconvenience of relying on less centrally-accessible sock puppet accounts or fanboys to repost messages and links from other outlets."
Indeed, shutting down the pages of determined groups often results in the content being publicized more widely. This phenomenon—known as the Streisand Effect—is a strong argument for the old adage that the best response to "bad" speech is more speech, not censorship.
Kenya’s military—Al-Shabaab’s primary adversary—apparently agrees. In a tweet dated December 20, 2011, Kenyan military spokesperson Major Emmanuel Chirchir stated: “The US is considering closing HSM account. Al Shabaab needs to be engaged positively and twitter [sic] is the only avenue.”
Apparently, when anonymous U.S. officials leaked their desire to censor Twitter in the New York Times a month ago, they didn’t consider the Streisand effect. Before the story, the joke among terrorism experts was about 99 percent of the account's followers were journalists and law enforcement. Afterwards, not only was the government’s contention about their “legal authority” mercilessly mocked, but their comments also helped attract attention to the account they so desperately want to silence: @HSMPress has gained more than 3,000 followers since the piece was published.
In fact, the content of the tweets poses no real or immediate threat to the U.S. The accounts speak in propaganda cliché—at least when they are not correcting the spelling of a Kenyan general or hinting at a Starbucks addiction.
We hope the U.S. government has better things to do than to upend Constitutional law and proceed with unprecedented censorship over a Twitter account that gets into Internet flame wars and professes a love for caramel macchiatos.
Ultimately, Justice Holmes was right: “that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”
On those grounds the so-called “terrorist” Twitter accounts will lose on their own accord.