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Who’s a Radical Now?

Michael German,
Senior Policy Counsel, ACLU Washington Legislative Office
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December 10, 2012

The Bipartisan Policy Center published a report last week called, “Countering Online Radicalization in America,” which strongly endorsed First Amendment principles in rejecting censorship as an appropriate tactic for addressing violent extremist content on the Internet. The report evaluated the many methods governments around the world use to censor the Internet – including filtering or blacklisting online content, taking down websites (either through legal means, cyber attacks or appealing to private sector providers), and prosecuting Internet content producers – and rejected them all as both ineffective in stopping the spread of undesirable ideas, and an affront to American values: “For the United States, the cost-benefit analysis would be even clearer: with its long and cherished tradition of free speech, the creation of a nationwide system of censorship is virtually inconceivable.” But the BPC’s positive recommendations are potentially undermined by its continuing embrace of a radicalization theory that draws too close a causal connection between “radical” ideas and violent action.

The BPC recognized, as the ACLU has long argued, that the American tradition of protecting free speech is the strength of our democracy, and that “Using the same kinds of methods that are used by dictatorships – however different the reasons and context – would undermine America’s leadership by vindicating the practices of rogue regimes and inspiring others to follow their example.” (Full disclosure: the BPC interviewed ACLU staff while conducting research for the report). Indeed, in a follow-up editorial, the BPC’s Co-Chairs Thomas H. Kean and Lee H. Hamilton, and the report’s author, Peter Neumann, even paraphrase an old ACLU axiom in recommending that instead of censorship the government should be empowering the free marketplace of ideas online: “the best way to defeat ‘bad ideas’ is to promote good ones.”

While we appreciate that the BPC report has endorsed the ACLU’s views opposing government censorship and promoting free expression, it is important to note that when the ACLU was founded in 1920, its interpretation of the scope of the First Amendment’s speech protections were considered dangerously “radical.” The ACLU was the target of intense investigation by the FBI and broad slanderous attacks by legislative committees investigating “radicalism,” including the Overman Committee in Congress and the Lusk Committee in New York State. Justice Department agents raided ACLU offices and placed its leaders and members under intense surveillance. Government agents testified that by defending pacifists and labor organizers accused under wartime statutes criminalizing anti-war and anti-government speech, ACLU lawyers were aiding America’s enemies and helping to spread radical foreign ideas within the United States.

The Supreme Court gradually came around to the ACLU’s viewpoint over many years, and the robust speech protections we now enjoy under the First Amendment became not just accepted, but expected. As the BPC report indicates, “even critics of what may be called ‘free speech absolutism’ concede ‘the First Amendment is so central to our self-conception’ that it has come to define what being American means.” This evolution in the courts’ and public’s understanding of the scope of free speech protections is a perfect example of how “radical” ideas often bring about social progress. (Other dangerously “radical” notions at the time included women’s suffrage and the 40-hour work week).

So, while we appreciate the BPC’s recognition of the importance of protecting free speech, we remain concerned that the concept of “radicalization” that it promotes – and which the government has too often adopted – draws too direct a causal link between the exposure to, or adoption of certain beliefs and the commission of violent terrorist acts. Empirical studies of terrorists do not support such a simplistic or direct causal connection (see for example this Rand report, especially the “Factor Tree for Root Causes of Terrorism” on page xx and the “Factor Tree for Individual Willingness to Engage in Terrorism” on page xxv). The BPC report identifies a few anecdotes regarding individuals who used the Internet and were later charged with terrorism offenses to justify this approach, but its analysis completely ignores the myriad other factors that may have played a more dominant role in those cases, as well as the many cases in which violent acts were not precipitated by exposure to similar online content. Most significantly, it fails to explain why the vast majority of people who are exposed to the same materials online, and even adopt similar beliefs as a result, do not become violent criminals or terrorists.

This radicalization theory is problematic from a civil liberties perspective because it makes the same mistakes that the Overman and Lusk Committees made almost a century ago: it identifies extreme ideas, rather than violent behavior as the problem that needs to be addressed. If certain ideas are the problem, the solution invariably includes suppressing those ideas, in one way or another. The BPC deserves commendation for rejecting censorship and for recommending that government efforts in this area should focus on activating and supporting a free and open marketplace of opinion on the Internet. But, because it muddies the important distinction between expressing extreme views and engaging in criminal conspiracies, its third recommendation that the government “exploit” cyberspace to gain intelligence and gather evidence could be interpreted to justify surveillance or investigations based on ideology rather than individualized evidence of wrongdoing. This concern is far from hypothetical: the FBI has a sordid history of using its powers to suppress political speech, one that is being repeated as the FBI’s investigative authorities have been expanded since 9/11. This new Department of Justice grant for a radicalization study raises similar concerns.

Indeed, government surveillance of the Internet chills the free exchange of ideas in ways that would undermine the BPC’s first two recommendations almost as severely as censorship, a point made during BPC’s press conference by a University of Wisconsin professor who raised concerns about inappropriate inferences intelligence agencies might make about terrorism researchers who view extremist content online (see the third video on this page at 16:02). A look at modern FBI counter-terrorism training materials doesn’t inspire confidence that the government is properly distinguishing between political rhetoric and illegal action. As ACLU executive director Anthony Romero said in testimony the BPC quoted in this section of its report, the government can and should use its robust powers to investigate criminal conspiracies and terrorist threats occurring online, but it must do so using time-tested procedures based on probable cause of wrongdoing and appropriate judicial oversight.

Finally, we fully agree with the BPC’s conclusion that “current procedures and oversight mechanisms [for government electronic surveillance programs] are not sufficient, adequate, or consistent.” Public oversight is essential to ensuring democratic control over executive branch activities, but even as Congress is again debating an extension to the Foreign Intelligence Surveillance Act Amendments, we know little about how these authorities are being used or the number of innocent Americans whose electronic communications are being inappropriately intercepted and stored in government databases. The BPC report reminds us that as we protect our nation, we must be careful to protect our values, as the two are not in opposition: “Having appropriate rules, oversight, and review mechanisms will not be an obstacle to making full use of the Internet in countering homegrown terrorism, but will enable a more systematic exploitation of this resource.” As Senator Barry Goldwater put it, “extremism in defense of liberty is no vice!”

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