United States Regulations and Policies
The US Federal Code provides that it is an offense to carry out an act of terror, to assist with such an act, and to knowingly provide material support to foreign terrorist organizations. Although the definitions of acts of terrorism were legislated without specific reference to cyberspace or the internet, they may in fact be applicable in these contexts under certain circumstances, as in the Federal Code’s criminalization of the destruction of communication systems, acts against mass transportation systems, terrorist training and financing as acts of terror. Nonetheless, many online extremist activities that may have been so characterized are protected under the First Amendment of the right to free speech. In addition, while the US Federal Code outlaws the provision of material support to foreign terrorist organizations, it does not prohibit such support to domestic terrorist organizations.
Social media companies operating in the US have found protection from being held liable for misuse of their platforms by means of terrorist-sponsored content under Section 230 of the Communications Decency Act (see below). The US government cooperates with such companies and provides them with training and resources to counter terrorist exploitation of their platforms. There have been attempts at both state and federal levels to enact new legislation to combat terrorist use of the internet; however, none of these bills have yet progressed into law.
United States Constitution and Case Law
The First Amendment to the United States Constitution, which guarantees the right to free speech, has protected individuals and groups associated with terrorist organizations. However, courts have ruled that there are forms of speech that are not protected under this law, which are particularly relevant to terrorist communications in the category of “incitement”.
In Brandenburg v. Ohio (1969), the US Supreme Court determined that free speech is not protected when it is “directed to inciting or producing imminent, lawless action and likely to incite or produce such imminent action”. “True threat” is another key doctrine that may apply to certain terrorist activities on the web. First established in Watts v. United States (1969), the speaker cannot be punished for “political hyperbole”. Hess v. Indiana (1973) clarified that speech does not satisfy the “imminence” requirement if it’s merely “advocacy of illegal action at some indefinite future time”.
However, the distinction between protected and unprotected forms of speech remains vague, and in many cases rulings side with the defendant. For example, in National Socialist Party v. Skokie (1977), the U.S Supreme Court decided that stopping a march of the Nationalist Socialist Party of America in a Jewish neighborhood deprived the NSPA of its right to free speech.
United States Strategy
The National Strategy for Counterterrorism of the USA, published in October 2018, recognizes the terrorist use of cyberspace for radicalization and recruitment purposes, while acknowledging that the US has not yet developed a “robust counterterrorism architecture” to tackle this issue.
The US counterterrorism strategy utilizes a dual approach to combat terrorist use of cyberspace. On the one hand, the country’s strategy is to expand its relationship with the technology sector through training and sharing best practices, thereby empowering companies to combat violent extremism and misuse of their platforms. On the other hand, the US aims to combat radicalization through strategic communications by working both at a government level, and in partnership with civil society, private sector, and the technology industry.
Material Support Statute
The Material Support Statute has been the primary source of prosecutions against individuals and organizations who support and promote terrorism online. The US Code § 2339A and US Code § 2339B make it an offense to knowingly provide material support or resources to terrorists and designated foreign terrorist organizations. The US Congress has continued to expand and amend various aspects of sections 2339A and 2339B, starting with the Effective Death Penalty Act (1996), followed by the USA Patriot Act (2001) and the Intelligence Reform and Terrorism Prevention Act (2004). As recently as 2015, Congress included within the USA Freedom Act of 2015 a provision to increase the penalty of violating section 2339B from a maximum of 15 years to a maximum of 20 years prison sentence.
Key to both sections is the precise definition of what is included under “material support or resources”, which consists of the following:
“any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials”
It is under this definition that social media companies such as Facebook have been accused of providing material support or resources to foreign terrorist organizations. However, technology companies have found protection from 2339A and 2339B under section 230 of the Communications Decency Act.
The Communications Decency Act
Section 230 of the Communications Decency Act of 1996 states 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”. The provision has given substantial protection to social media companies whose platforms have been used by terrorist groups. Recent attempts to hold internet service providers accountable under civil liability include Cohen v. Facebook, inc (2017), Force v. Facebook, inc (2017), and Fields v. Twitter, Inc (2018).
Further attempts at regulating terrorist activity within cyberspace have been made at both the state and federal level. In 2015, a bill titled Combat Terrorist Use of Social Media was introduced to the United States House of Representatives. The bill passed the House, but failed the Senate after resistance from Twitter and Facebook over the Senate’s proposal to require social media companies to alert authorities of terrorist activities on their platforms. Later in January 2016, Indiana Senate tried to introduce a state bill (Senate Bill 283) to counter terrorist propaganda, but it was withdrawn later that month without explanation.
US Strategic Activities
Several governmental departments have engaged in multiple activities in line with the national strategy for countering terrorism. The Countering Violent Extremism (CVE) Task Force, which was created to implement the US government’s 2011 CVE Strategy, brings together experts from the Department of Homeland Security (DHS), the Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), and the National Counterterrorism Center (NCTC). The Task Force maintains a range of functions to support government and civil strategies, including working with the UK’s Home Office to provide an educational training course on “Countering Terrorists Exploitation of Social Media and the Internet”.