Constitutionality of the No Fly List

For over ten years the federal government has used the No Fly List to ensure that individuals are barred from flying on U.S. airlines or over U.S. airspace because they were considered terrorists.[1]  Federal courts, historically, have dismissed many cases in the post-9/11 era where plaintiffs raised constitutional challenges to watch lists on “jurisdictional or other preliminary grounds.”[2] However, in 2014, two district courts in the Ninth Circuit ruled that the bare procedures available to challenge an individual’s state on the No Fly List violated due process and the government chose not to appeal either decision.[3] Beyond the Ninth Circuit, other District Courts began to take a stand as well. The District Court for the Eastern District of Virginia refused to dismiss No Fly List cases despite objections from the government regarding state secrets.[4] However, this does not address what future remedies there should be when tackling the issue an individual finds themselves facing when they are kept from flying due to being on the No Fly List.

The flagship case was Latif v. Holder, where the ACLU brought suit on behalf of thirteen U.S. citizens and permanent residents who were barred from flying. The Judge from the District of Oregon stated that being placed on the No Fly List “implicated liberty interests protected by the Due Process Clause.”[1] When the decision was appealed, the District Court of Oregon ruled that the existing procedures to contest being on the No Fly List were ineffective and the government was ordered to create constitutionally proper procedures.

But what is there to do when there is nearly non-existent, if any, substantive due process?  To amend a substantive due process issue, you must turn to the procedure being used to violate due process and change it. In this case, individuals are not provided a process that will bring about a remedy that will be either efficient for the government or satisfactory for the individual burdened with this problem. The questions that require answering are as follow: 1. What should be the amended procedure to allow for proper substantive due process?, 2. Who should be in charge of the newly implemented procedure and remedies?, 3. What sort of remedies should be available once a process is in place?, and 4. Whether and which courts should be tasked with dealing with the cases that arise from placement on the No Fly List?

Substantive Due Process limits what the government can do even if the government is providing the proper procedure. However, in this case, the process put into place is anything but the appropriate process. In this case, there is an argument to be made that this process that has been put into place may violate a U.S. citizen or person’s right to travel and movement and does not allow for a way to satisfactorily adjudicate the issue for correction. The right to travel encompasses at least three different components, but in this case, the right to travel means protection of the right of a citizen of one State to enter and to leave another State.[1] Under Eunique v. Powell, the Ninth Circuit recognized the right to international travel as a protected right under substantive due process.[1] The Supreme Court has also had some things to say with regard to international travel, which can be seen in Apthekar v. Secretary of State, which quoted Kent v. Dulles in saying “this Court declared that the right to travel abroad is ‘an important aspect of the citizen’s ‘liberty“ guaranteed in the Due Process Clause of the Fifth Amendment.”

Thus, to amend the No Fly List complaint process to be in compliance with the law of the Constitution and the Supreme Court, an appropriate due process procedure would need to be put into place. Such things that could be amended would be to allow for appropriate clearance level attorneys, who are able to see the classified materials used against the individual, to work on behalf of the complaining individuals. Another amendment could be a judge or court that can see classified materials, or can sit in camera, to determine the validity of the documents used to put a person on the No Fly List. Finally, an amendment option could be to create a commission or committee whose sole purpose it is is to review individuals on the No Fly List to ensure that those placed on the list, whether they have complained or not, are correctly placed on the list before they even have a chance to make a complaint and use the TRIP process. This would relieve the burden of a violation of an individual’s Constitutional rights.

Once the process has been amended, who runs the new procedure is an important task that needs assigning. It is more appropriate that the Department of Homeland Security, who controls the Transportation Security Administration (the TSA), continues to maintain the No Fly List as they are tasked with protecting the United States’ borders via the Customs and Border Patrol, Immigration and Customs Enforcement, and the Citizenship and Immigration Services. Because the Department of Homeland Security already contains all these border protecting bodies, some of which are specifically stationed at the airport, it makes sense that they maintain the No Fly List and, thus, are the first line of inquiry when an individual has a complaint regarding placement on the No Fly List. Provided the Department of Homeland Security continue to work in sync efficiently, then that part of the current procedure can stay the same in who handles the issue of placement on the No Fly List.

It is also possible for a separate commission or committee to be put together to handle running the No Fly List since it might be even better for the sake of efficiency and expediency that a separate entity maintains the list, reviews complaints lodged about being placed on the No Fly List, and whatever follows through with regard to remedies, whether it be in the form of Due Process or name removal.

The next issue to be cleared away is what sort of remedies should be available to an individual once they have gone through the process and have been found to be improperly placed on the No Fly List. The most obvious answer for future complaints would be the individual should be notified that they have been removed from the No Fly List if they are found to be incorrectly placed on the list. However, if there is reason to believe that the individual is correctly placed on the list, the remedy that should be given to the individual is to be given the information necessary to contest the placement if they want to dispute the placement. With the new procedure in place, including a lawyer with the appropriate clearance and need to know for the case, assigned to the individual contesting the placement, it would be possible for the case to be handled responsibly and the individual could find redress through the actual process by being removed from the No Fly List if the case against them is insufficient. The opposite is also true though in that the federal government could be found to correctly have placed the individual on the list and need fear no backlash on the basis of constitutionality of their methods.

Finally, the last question to be addressed is whether and which courts should be charged with adjudicating cases that arise out of the No Fly List. Article I courts could be the appropriate venue because the No Fly List is maintained by the Department of Homeland Security and reviewed by the FBI when a complaint is lodged. Both of these departments fall under the Executive Branch of the government, which might make it conducive to be adjudicated under the Executive Branch by creating a court or commission that is tasked with handling the No Fly List cases appropriately. However, this may become a conflict of interest they could give bias in favor of the agencies they would purport to challenge because both would fall under Article I of the Executive Branch and there could be the potential to sway or bias these courts or commissions in favor of the Department of Homeland Security or the FBI.

If it is found that an Article I court is insufficient to handle cases arising from the No Fly List, then it is possible that Article III courts will continue to be the court of choice with regard to these cases. Because these cases handle sensitive, federal question material, it would be appropriate for the federal district courts to continue having jurisdiction as, by now, they would be well-equipped to handle the classified materials that exist in these cases. Judges in the federal district courts, some more than others, are used to hearing and reading classified material, operating in camera to protect classified materials, and are more understanding of the restrictions the government has with regard to allowing sensitive material to be shown. However, while they may be more understanding, these judges are also potentially less sympathetic and may try harder, as they have been in recent cases, to ensure individuals complaining about being incorrectly placed on the No Fly List are allowed their day in court.

After Latif, the cases in complaint of the No Fly List have steadily come to court more and more, the government no longer trying to object to them, especially after losing multiple appeals. The Department of Justice has come to terms with the unconstitutionality of the No Fly List, but the list still remains in play. Thus, if the No Fly List is going to continue existing and is enforced, it is necessary to amend the list and the process of complaining against inclusion on the list to make the process constitutionally adequate. As of now, this process is constitutionally unsound and violates U.S. citizens and persons constitutional rights, but it can be rectified by implementing an amended process. However, even after the process is updated, it still remains that Congress and federal courts should question the foundation of the No Fly List itself in that those who have not been charged with any crime are still considered too dangerous to fly under any circumstances and that is still a violation of their Due Process clause.[1]

United States Sanctions on Iran after the Nuclear Deal

The Iran Nuclear Arms Deal is a landmark, but this deal has been heavily criticized due to the United States economic penalties toward Iran. The circumstances in Iran has put the United States in a difficult situation as they have had to rely on sanctions to deter Iranian actions, but Iran has complied with the deal and expects more of an economic boom. This has led other countries in Europe and Asia uncertain whether to deal in legal business with Iran due to United States laws in sanctions and financial regulations.

The Iran Nuclear Deal stated that Iran would sacrifice two-thirds of its ability to enrich uranium, which is used to make the core of a nuclear bomb, and to be monitored by the International Atomic Energy Agency (IAEA).[1] Iran would agree to IAEA inspectors monitoring its nuclear plants and other facilities. Once the IAEA has confirmed that Iran has taken these steps, America would lift nuclear-related economic sanctions.[2] These sanctions include oil embargos and financial restrictions.[3] By lifting these economic sanctions, it was estimated $100 billion of frozen Iranian assets would be released. Iran would remain subject to a United Nations arms embargo for five years.[4]

The United States government has engaged in foreign trade with Iran even though it has forbidden most American commerce with Iran.[5] The United States implements sanctions through the Treasury Department Office of Foreign Assets Control (OFAC).[6] These sanctions apply to United States companies, and anyone in the United States.[7] If companies in the Untied States were to trade with Iran they could be fined and prosecuted for civil violations that do not require a showing of intent or knowledge, and are punishable by heavy penalties.[8]

These sanctions and regulations have caused uncertainty for Asian and European government and companies doing legal business due to the fear of being prosecuted by the United States.[9] Since United States banks can not do business in Iran, there is a prohibition of transactions in dollars.[10] This is a large issue as it is a main business currency through the United States financial system.[11] This causes international banks hesitant in processing Iranian transactions, due to fear that the United States prosecuting these banks because of sanctions they have implemented in Iran.

Even though some sanctions have been lifted it is not clear what type of trading is still allowed with Iran.[12] Furthermore, Iran’s action in the area is seen as hostile. They continue to test ballistic missals.[13] The United States fears that these ballistic missals could be used one day to deliver a nuclear payload.[14] Even though these tests are not covered by the nuclear deal the United States has responded by placing sanctions on Iranian business and individuals but not on the nation.

United States sanctions upon Iran have caused fear of prosecution to business and banks that deal with Iran. This in some ways has caused Iran not to see the large economic boom they expected. Due to Iran’s continued ballistic testing in the area, and fear that these missals could one day carry a nuclear payload, the United States has sanctioned Iran even more. This causes the United States to be in a precarious situation as one of the reasons to the nuclear deal was to help Iran get its economy back on track, but at the same time the United States must implement sanctions on hostilities, and walking away from the deal would cause further destabilization in the area.

 

[1] David Blair, A Summary of the Iran Nuclear Deal, (Jul. 14, 2015), http://www.telegraph.co.uk/news/worldnews/middleeast/iran/11739214/A-summary-of-the-Iran-nuclear-deal.html

[2] Id.

[3] Id.

[4] Id.

[5] U.S. Census Bureau, Trade in Goods with Iran, (Dec. 12, 2015), https://www.census.gov/foreign-trade/balance/c5070.html

[6] Alacra Compliance Primer, Enforcement Actions for U.S. Sanctions Violations Offer Lessons for Compliance, (Sept. 14, 2014), https://www.alacra.com/alacra/help/alacracomplianceprimer3.pdf

[7] Id.

[8] Id.

[9] Matthew Lee, Analysis: Iran Nuclear Deal Puts U.S. in Bind Amid Criticism, (Apr. 11, 2016), http://abcnews.go.com/Politics/wireStory/analysis-iran-nuclear-deal-puts-us-bind-amid-38301740

 

[10] PRESSTV, Banks still afraid of US fines to process Iran deals, (Mar. 23, 2016), http://www.presstv.com/Detail/2016/03/23/457187/Banks-still-afraid-of-US-fines-to-process-Iran-deals/

[11] Id.

[12] Tom Arnold and Jonathan Saul, Iranians Exasperated as U.S. sanctions frustrate deal making, (Mar. 22, 2016), http://www.reuters.com/article/us-iran-trade-finance-idUSKCN0WO1Y3

[13] Fox News, Iran to US: Missile Program “not open to negotiation,(Apr. 10, 2016), http://www.foxnews.com/us/2016/04/10/iran-says-missile-program-is-not-negotiable.html

[14] Id.

Sign Her Up? Women and Selective Service in a Post-Rostker v. Goldberg Era

The Selective Service System was first adopted in 1917 prior to the United States’ participation in World War I.[1] After the country experienced two global wars, the Military Selective Service Act (MSSA) was reenacted in 1948 with the goal of maintaining America’s armed forces.[2] For the purpose of sustaining “adequate armed strength” to “insure the security of this Nation,” adult males are required to register for military service.[3] Given recent events taken by the Defense Secretary, the applicability of this statute may be extended to adult females as well.

In December 2015, Defense Secretary Carter opened up all military positions to women, including combat and special operations positions.[4] This historic move that is currently in the process of being implemented among America’s armed forces puts forth the question of whether all adult female citizens will be required to register for military service. This question had been answered in the past through Rostker v. Goldberg.[5]

This case was brought to the Supreme Court after plaintiffs, several men who were subject to registration and subsequent entry into the armed services, filed a complaint in the United States District Court for the Eastern District of Pennsylvania challenging the constitutionality of MSSA, particularly for the gender-based discrimination.[6] In 1980, the District Court found MSSA unconstitutional on the grounds that it violated the Due Process Clause of the Fifth Amendment. Utilizing the “important government interest” test from Craig v. Boren, the District Court struck down MSSA and held that having women registrants available would increase flexibility in the armed forces; thus, the court rejected Congress’ contention that registering women would result in “inconsistent positions.”[7]

The Supreme Court reached a different conclusion and reversed the District Court’s decision in 1981. Citing a Senate Report discussing the possibility of registering women, the Court reasoned that both Houses of Congress found that “[if] mobilization were to be ordered in a wartime scenario, the primary manpower need would be for combat replacements.”[8] Since women as a group were ineligible for combat positions, the exemption of women from registration in MSSA was deemed closely related to Congress’ purpose in authorizing and limiting registration to men, and did not violate the Due Process Clause.[9]

However, since all positions without exclusion are now available to women, the Supreme Court’s reasoning in Rostker no longer applies. This opens up the possibility to require women to register like their male counterparts, and presents opportunities for women to participate in physically demanding positions, including infantry and Special Operations jobs like the Navy SEAL and Green Beret.[10] Although registration is merely the first step and does not necessarily mandate service, sending eighteen and twenty year old women into combat is an uncomfortable topic to talk about.[11]

Although the topic is difficult to discuss, key figures have spoken in the affirmative about requiring female citizens to register. General Mark Milley, chief of staff of the Army, and General Robert Neller, the Marine Corps commandant, stated that they were on board with the change during a Senate Armed Services Committee hearing discussing the complete integration of women in the military on February 2, 2016.[12] Furthermore, the Defense Department intends on beginning associated changes in training and evaluation of women in combat roles by April 1 this year.

Needless to say, whether one sees this as a civic duty that women must fulfill or placing women in unnecessary danger, imposing a requirement for women in the United States to register would be significant moment in American military history.

[1] Dan Lamothe, Army and Marine Corps chiefs: It’s time for women to register for the draft, The Washington Post (February 2, 2016), https://www.washingtonpost.com/news/checkpoint/wp/2016/02/02/army-and-marine-corps-chiefs-its-time-for-women-to-register-for-the-draft/

[2] Selective Service Act of 1948, Publ. L. No. 80-759, 62 Stat. 604 (1948).

[3] 50 U.S.C. § 3801 (2015).

[4] Supra Note 1.

[5] Rostker v. Goldberg, 453 U.S. 57 (1981).

[6] Id. at 61.

[7] Craig v. Boren, 429 U.S. 190, 197 (1976) (quoting Reed v. Reed which held that in order to withstand constitutional challenge “classifications by gender must serve important governmental objectives and must be substantially related to achieve those objectives”); Rostker, 453 U.S. at 63.

[8] Rostker, 453 U.S. at 76 (quoting S. Rep. No. 90-826, at 160 (1980)).

[9] Id. at 77-79.

[10] Supra note 1.

[11] Dan Lamothe, There’s a rift opening on how the U.S. should handle women and military drafts, The Washington Post (February 5, 2016), https://www.washingtonpost.com/news/checkpoint/wp/2016/02/05/theres-a-rift-opening-on-how-the-u-s-should-handle-women-and-military-drafts/?tid=sm_tw

[12] Supra note 1.

Congress Should Consider NATO to Fill Gaps in European Security

The House Homeland Security Committee Task Force on Combating Terrorist and Foreign Fighter Travel released its final report in September 2015 raising 32 key findings and over 50 commendations for countering terrorist travel.[1] The report states that we are seeing the largest migration of jihadists in history. Over 4,500 Westerners are among the fighters are headed to Iraq and Syria. These foreign fighters threaten the security of the United States in three ways: 1) they bolster terrorist organizations, 2) influence other Westerners to leave home and join them, and 3) can return to their respective home countries to carryout attacks after receiving training themselves.[2]

A major point of the Report is that there are gaping holes in European security that are ultimately putting the United States at risk. Foreign fighters are using European countries with weak counterterrorism laws as a gateway to the rest of the Schengen Area countries and North America. The United Nations has attempted to combat this problem by passing U.N. Security Council Resolution 2178. This document recognizes the threat of terrorism and foreign fighters, and calls upon member state to take actions to implement the counterterrorism efforts alluded to in this document. The House Homeland Security Committee Task Force on Combating Terrorist and Foreign Fighter Travel has expressed support for the resolution and has encouraged the relevant U.S. agencies to fulfill their obligations under the resolution. However, this document is rather lofty and seems to lack backing and enforceability, and will likely not fill the security gaps in Europe.

I would like to contend that NATO should be heavily involved in the counterterrorism efforts and used to fill the security gaps in Europe. Congress should use the full extent of its authority and influence to compel NATO to become a leader in the effort. Through this article I will explore the idea of NATO being a more effective leader in the counterterrorism effort and being used to close the gaps in European security.

NATO would be an effective counterterrorism authority for the following reasons: 1) NATO is a military organization at its core, 2) NATO is made up of a concise number of states, 3) the member states of NATO have a high stake in counterterrorism and mitigating foreign fighter travel, and 4) NATO has the ability to mobilize and has experience mobilizing states in counterterrorism efforts.

NATO is a dual-faceted organization operating on both a political and military platform. The political mission of NATO is to protect freedom and ensure the security of its member states through consultation and cooperation. Even the political component of NATO has the ultimate goal of fostering security and defense cooperation to build trust and prevent future conflict. Given the violent nature of the threat we are seeing from foreign fighters and terrorists, a military-minded organization is needed counterstrike effectively.[3]

NATO is made up of a concise number of relatively like-minded states that span a specific region. The ideological similarities that the member states share can facilitate cooperation effectively because there are not large divides in opinions on tactics that are used to respond to foreign fighters and terrorism as might be seen in other security minded organizations. The geographical centrality of NATO creates an incentive to work together because if an act of terrorism is committed in one member state, it can almost just as easily be committed in the next member state. The counter terrorism effort should be especially unified between the Schengen Area member states, and Canada and the United States on the western fringe of NATO. The ease of access between Schengen Area states, and between the United States and Canada, creates a strong sense of accountability for each individual country in each region to prevent foreign fighters from initially passing through their border. If a foreign fighter initially enters into a country in either region, he is able to travel among the other countries in that region in a manner that is less restricted than his initial entrance into the first country. The same is true if a foreign fighter wishes to travel from Europe to the United States or Canada. Traveling from eastern NATO states to western NATO states is easier than traveling from most non-NATO states to NATO states. It is very important that member states cooperate to keep foreign fighters from traveling into any NATO state from any non-NATO state and also that they effectively restrict travel of any foreign fighters that are discovered within their territory. The ideological and regional similarities of the NATO states makes for an organizational culture that is keen on working toward this common goal.

The NATO states, making up most of “the west” have a very specific interest in counterterrorism because the Islamic State and most other terrorist groups have effectively declared war on the west and expressed their hate of western values.[4] Most attacks are taking place within or around Islamic State-held territory currently, but this could change if NATO countries do not strengthen their capacity to filter out terrorists attempting to enter their countries. Member states have a specific interest in counterterrorism because they are the highest value targets for terrorist organizations.

As demonstrated shortly after 9/11, NATO has the capacity to enforce Article 5 of the Washington Treaty and respond to acts of terrorism. Article 5 considers an attack on any one NATO state to be an attack on all NATO states.[5] This unifies the treaty organization and allows for the option of an actual military response. NATO should consider enforcing Article 5 and responding strongly to the threat of terrorism and the travel of foreign fighters in an attempt to fill the security gaps in Europe.

Congress would see positive results if it used its authority and influence to encourage NATO to become a leader in filling the gaps in European security in the fight against terrorism and foreign fighter travel. Because of NATO’s military focus, concise numbers, directly threatened member states, and mobilizing ability, it would make an effective leader in counterterrorism and be an efficient way for the United States to cooperate with Europe.

By: Daniel Patrick Shaffer

[1] “Final Report of Task Force on Combating Terrorist and Foreign Fighter Travel.” Homeland Security Committee. Web. 21 Feb. 2016. <https://homeland.house.gov/task-force-on-terrorist-and-foreign-fighter-travel/>.

[2] Id.

[3] North Atlantic Treaty Organization. Web. 22 Feb. 2016. <http://www.nato.int/>.

[4] “Isis Announces Caliphate in ‘declaration of War'” The Guardian. 29 June 2014. Web. 23 Feb. 2016. <http://www.theguardian.com/world/2014/jun/29/isis-iraq-caliphate-delcaration-war>.

[5] The North Atlantic TreatyNorth Atlantic Treaty Organization. 09 Dec. 2008. Web. 23 Feb. 2016. <http://www.nato.int/cps/en/natolive/official_texts_17120.htm>.

 

When Free Speech Becomes Material Support: § 2339 and the Private Sector’s Role in Combatting Terrorist Social Media Propaganda

It is well documented that ISIS and other terrorist organizations have made great use of social media platforms to advance their propaganda and to recruit. In response, the United States government has increased its pressure on the private sector to take a more active stance in flagging and removing terrorism-related content. [1] However, the response from the major social media forums has been hesitant. There are two issues that will predominate in the debate of how to combat the social media recruitment techniques of terrorist organizations. First, to what extent can and will social media companies go to root out terrorist-recruitment content and user accounts; and second, will the United States be able to effectively identify and prosecute users who post content deemed to be supporting or advocating terrorist organizations.

At the heart of the tensions concerning removal of social media content is the debate over free speech and consumer privacy against combatting the proliferation of terrorist propaganda. Social media sites like Twitter promote themselves as a global platform of free thought and exchange, and it is perhaps because of this outspoken stance that Twitter has been the primary forum for the spread of terrorist propaganda. [2] However, Twitter has in recent months taken precautions to combat this propaganda campaign, deactivating nearly 125,000 user accounts it had deemed affiliated with supporting terrorism in a six-month span. [3] Twitter has also expanded its review board and now claims to suspend accounts on an hourly basis in order to effectively respond to complaints or flagged materials in a shorter amount of time. [4] Major social media sites, because they are comprised of user-generated content, respond to complaints or flags and then review the posts before taking them down. Twitter released an official comment on February 5, stating, “There is no ‘magic algorithm’ to find tweets and no set standard for determining if it is promoting terrorism.” [5]

Congressional response has been mixed. Rep. Adam Schiff of California and member of the House Permanent Select Committee on Intelligence called Twitter’s announcement “a very positive development.” [6] In stark contrast is Rep. Ted Poe, who criticized tech companies such as Facebook, Instagram, and Twitter for being hesitant to act. He stated “To put it bluntly, private American companies should not be operating as the propaganda megaphone of foreign terrorist organizations…” [7]

The most immediate concern is whether social media companies’ decision to engage in this review process presents First Amendment issues. The slow response to the rise of extremist groups using social media is largely a result of hesitancy to clamp down on free speech and the difficulty in creating standards of review to determine which posts and accounts to take down. [8] Even if the social media companies decide to strengthen their stance against potential terrorist recruitment accounts or posts, the potential exists for the to open new accounts and continue to post terrorism-related content until that new account is flagged and removed.

An alternative method that the United States has already begun to explore is to prosecute users identified as American citizens who promote terrorism-related posts and tweets under 18 U.S.C. § 2339. The statute states that it is unlawful for “Whoever provides material support or resources… knowing or intending that they are to be used in preparation… [for aiding terrorist organizations].” [9] The relevant definition of material support provided in § 2339b refers to “any means any property, tangible or intangible, or service… expert advice or assistance.” [10] Expert advice and assistance is defined as “advice or assistance derived from scientific, technical or other specialized knowledge.” [11] The statute has most often been used to prosecute United States citizens providing financial, military, and strategic support to identified terrorist organizations, but Assistant Attorney General for National Security John Carlin has recently stated the potential exists for using the law to prosecute online media content deemed to provide “technical expertise” to a designated terrorist organization. [12]

However, recent case law developments could frustrate attempts to prosecute those who post content sympathetic to a terrorist organization. In the 2010 Supreme Court case Holder v. Humanitarian Law Project, United States citizens and domestic organizations had sought to provide support for lawful activities of two organizations that had been designated as foreign terrorist organizations. [13]. The organizations sought injunction against the enforcement of the § 2339 on the grounds that it violated their First Amendment right of freedoms of speech and association, and also that it failed for vagueness. [14] The Court upheld the statute based only on the fact that the plaintiffs were clearly engaging in training through its work with the two groups that would constitute expert advice and assistance. [15] The Court noted that the statute only reaches material support when the activity is coordinated with or under the direction of a designated foreign terrorist organization; independent advocacy that might be viewed as promoting the group’s legitimacy is not covered. [16] To succeed in prosecuting United States citizens based on the Court’s holding in Holder, the content must be more specific than a generalized tweet of support or sympathy. Thus, the fact that a message could be used as a general recruitment tool is unlikely to meet the legal standard fashioned in Holder and thus will be protected as political speech under the First Amendment.

Ultimately, the private sector’s current hesitance and the judicial constraints on § 2339 limit the effectiveness of the current tools to fight against the ISIS and terror-affiliates social media propaganda campaign. Whether additional legislation will be adopted to effectuate more progress in the anti-ISIS campaign on the social media front is uncertain at this time. However, given the current landscape, a more coordinated effort with the private sector and exploring legislative options will likely be the starting point for a strategy moving forward.

 

 

 

 

[1] Damian Paletta, U.S. Working on Plan to Scrutinize Social Media in Visa Review, W.S.J., 14 Dec. 2015. Available at http://www.wsj.com/articles/u-s-working-on-plan-to-scrutinize-social-media-in-visa-reviews-1450122633?mod=djemalertNEWS.

[2] Scott Higham & Ellen Nakashima, Why the Islamic State Leaves Tech Companies Torn between Free Speech and Security, Wash. Post, 16 July 2015. Available at https://www.washingtonpost.com/world/national-security/islamic-states-embrace-of-social-media-puts-tech-companies-in-a-bind/2015/07/15/0e5624c4-169c-11e5-89f3-61410da94eb1_story.html?km&kmap=1

[3] Yoree Koh, Twitter Suspends 125,000 ISIS-Related Accounts in Six Months, W.S.J., 5 Feb. 2016. Available at http://blogs.wsj.com/digits/2016/02/05/twitter-suspended-125000-isis-related-accounts-in-six-months/

[4] Jessica Guynn & Elizabeth Weise, Twitter Suspends 125,000 ISIL-Related Accounts, U.S.A. Today, 5 Feb. 2016. Available at http://www.usatoday.com/story/tech/news/2016/02/05/twitter-suspends-125000-isil-related-accounts/79889892/

[5] Id.

[6] See Footnote 3.

[7] Candice Lanier, Free Speech or Material Support to Terrorists? Twitter Begins Cracking Down On Hateful Tweets, Medium Corp. 20 Apr. 2015. Available at https://medium.com/@CandiceLanier/http-betanews-com-2015-04-17-twitter-moves-non-us-accounts-to-ireland-away-from-the-nsa-ee6b3027df57#.mceh4wq1y.

[8] See Footnote 3.

[9] 18 U.S.C. §2339(a) (West 1996).

[10] § 2339(b).

[11] Id.

[12] See Footnote 7.

[13] Holder v. Humanitarian Law Project, 561 U.S. 1, 9-10 (2010).

[14] Holder, 561 U.S. at 10-11.

[15] Holder, 561 U.S. at 22-23.

[16] Holder, 561 U.S. at 32.