Rights and Values in Counter-Terrorism Online

Abstract

Content moderation for counterterrorism purposes is hobbled by the problem of specificity: the difficulty of knowing what content could lead to violence. Online content is generated by terrorists and their supporters for sinister purposes but circulated and consumed by a far wider audience who may be inspired, disgusted or indifferent. The presence or discoverability of terrorism content may serve real and not merely abstract interests of freedom of expression and personal development. However, the traditional approach of identifying fundamental human rights which may or may not be outweighed by the counterterrorism interest is complicated by two factors discussed in this article: firstly, the unsuitability of the human rights framework in the online space; secondly, the difficulty of understanding trade-offs between restrictions on free expression and the capacity of the internet in its current form.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1 E.g. United Nations Office on Drugs and Crime, The Use of the Internet for Terrorist Purposes (New York City, NY: United Nations, 2012).

2 E.g., Stuart Macdonald, Connor Rees, and Joost S, Remove, Impede, Disrupt, Redirect: Understanding and Combating Pro-Islamic State Use of File-Sharing Platforms (Washington, DC: Resolve Network, 2022). Tech Against Terrorism identify the following categories of platforms used to disseminate content: beacons, content stores, aggregators and circumvention platforms.

3 For an accessible history of evolving use of platforms between 2003 and 2019, see: Heather J. Williams, Alexandra T. Evans, Jamie Ryan, Erik E. Mueller, and Bryce Downing, The Online Extremist Ecosystem: Its Evolution and a Framework for Separating Extreme from Mainstream (Washington, DC, RAND Corporation, 2021). doi: 10.7249/PEA1458-1 (accessed May 3, 2023).

4 Nicholas J. Rasmussen, “Prepared Statement” (The Dynamic Terrorism Landscape and What it Means for America, Committee on Homeland Security, House of Representatives, 117^th Congress, 2^nd Session, February 2, 2022), 8–12.

5 HM Government, “Impact Assessment: Online Safety Bill” (RPC-DCMS-4347(4), Department for Digital, Culture, Media and Sport, Home Office, London, 31 January 2022), 89, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1061265/Online_Safety_Bill_impact_assessment.pdf (accessed May 3, 2023).

6 “Cyber Terrorism: Islamic State’s Effective Exploitation of Social Media,” Pool Reinsurance, 27 April 2022, https://www.poolre.co.uk/cyber-terrorism-islamic-states-effective-exploitation-of-social-media/ (accessed May 3, 2023).

7 Te Tari Taiwhenua Department of Internal Affairs “2021 Digital Violent Extremism Transparency Report” (New Zealand Government, 2022), 31, https://www.dia.govt.nz/diawebsite.nsf/Files/Countering-violent-extremism-online/$file/DVE-Transparency-Report-2021-a.pdf (accessed May 5, 2023).

8 For the purposes of this article I refer to blocking or removing content, although there will be other measures which are capable of disrupting patterns of terrorist behavior online. This is sometimes referred to as the process of adding friction by, for example, making it more difficult to re-post at scale (as advocated by the Facebook whistle-blower, Frances Haugen, in her oral evidence to the UK Parliament’s Joint Committee on the Online Safety Bill), or requiring age-verification by children (Joint Committee on the Draft Online Safety Bill, “Draft Online Safety Bill” (Report of Session 2021–22, HL Paper 129, HC 609, House of Lords and House of Commons, London, 2021), https://committees.parliament.uk/publications/8206/documents/84092/default/ (accessed May 3, 2023).

9 See section 1(1) of the UK’s Terrorism Act 2000.

10 I recognize that in a future metaverse, it might be necessary to give serious consideration to the protection of digital avatars, depending on the importance particularly they play in everyday life. Article 8(d) of the UN’s Internet Governance Forum’s ‘Charter of human rights and principles for the internet’ concerns the right to and inviolability of virtual personalities. Terrorist cyber-attacks are catered for in the UK definition of terrorism (section 1(2)(e) of the Terrorism Act 2000 includes action designed seriously to interfere with or seriously to disrupt an electronic system) but terrorist cyberattacks are some way off (Greg Williams, “‘Cyber Doesn’t Respect Borders’: GCHQ’s Security Chief on the Dangers Facing the UK.” Wired, 6 May 2017).  

11 An example in the UK is the conviction of Daniel Wright, Liam Hall, Stacey Salmon and Samuel Whibley (“Extreme Right Wing Terror Group Sentenced to More than 30 years Imprisonment.” Counter Terrorism Policing, 23 June 2022, https://www.counterterrorism.police.uk/extreme-right-wing-terror-group-sentenced-to-more-than-30-years-imprisonment/ (accessed May 3, 2023)).

12 Paul Gill, Emily Corner, Amy McKee, Paul Hitchen, and Paul Betley, “What Do Closed Source Data Tell Us About Lone Actor Terrorist Behavior? A Research Note,” Terrorism and Political Violence 34, no. 1 (2022): 113–30, doi: 10.1080/09546553.2019.1668781 found that evidence of bomb-making manuals was identified in over 70% of their sample.

13 Rob Faure Walker, The Emergence of ‘Extremism’: Exposing the Violent Discourse and Language of ‘Radicalisation’ (London: Bloomsbury, 2021) takes issue with the idea that expression of radical beliefs is a predictor of future acts of violence.

14 Stuart Macdonald and Joe Whittaker, “Online Radicalization: Contested Terms and Conceptual Clarity,” in Online Terrorist Propaganda, Recruitment, and Radicalization, ed. John R. Vacca (Boca Raton, FL: CRC Press, 2019).

15 Maura Conway, “Determining the Role of the Internet in Violent Extremism and Terrorism: Six Suggestions for Progressing Research,” Studies in Conflict in Terrorism 40, no. 1 (2017): 77–98, doi: 10.1080/1057610X.2016.1157408.

16 Shayan Sardarizadeh. “Buffalo Shooting: How Far-Right Killers are Radicalised Online.” BBC News, 17 May 2022, https://www.bbc.co.uk/news/blogs-trending-61460468 (accessed May 3, 2023).

17 Sanya Burgess. “3-D Printed Guns Are Appearing on British Streets – And the Police Are Taking Notice.” Sky News, 15 June 2022, https://news.sky.com/story/3d-printed-guns-how-easy-is-it-to-obtain-an-illegal-firearm-in-the-uk-and-who-is-doing-it-12630777 (accessed May 3, 2023).

18 J. M. Berger and Heather Perez, The Islamic State’s Diminishing Returns on Twitter: How Suspensions Are Limiting the Social Networks of English-Speaking ISIS Supporters (Washington, DC: George Washington Program on Extremism, 2016), https://extremism.gwu.edu/sites/g/files/zaxdzs5746/files/downloads/JMB%20Diminishing%20Returns.pdf (accessed May 3, 2023).

19 Donald Holbrook, “Using the Qur’an to Justify Terrorist Violence: Analysing Selective Application of the Qur’an in English-Language Militant Islamist Discourse,” Perspectives on Terrorism 4, no. 3 (2010): 15–28, https://www.universiteitleiden.nl/binaries/content/assets/customsites/perspectives-on-terrorism/2010/issue-3/using-the-qur%E2%80%99an-to-justify-terrorist-violence-donald-holbrook.pdf (accessed May 3, 2023).

20 Andrew Glazzard, “Shooting the Messenger: Do Not Blame the Internet for Terrorism,” RUSI Newbrief 39, no. 1 (2019): 1–3, https://static.rusi.org/20190215_newsbrief_vol39_no1_glazzard_web.pdf (accessed May 3, 2023); Vikram Dodd. “How London Mosque Attacker Became a Terrorist in Three Weeks.” The Guardian, February 1, 2018, https://www.theguardian.com/uk-news/2018/feb/01/finsbury-park-london-mosque-van-attack-darren-osborne-makram-ali (accessed May 3, 2023).

21 Henrik Gråtrud, “Islamic State Nasheeds As Messaging Tools,” Studies in Conflict & Terrorism 39, no. 12 (2016): 1050–70, doi: 10.1080/1057610X.2016.1159429.

22 Berger and Perez, “The Islamic State’s Diminishing Returns on Twitter,” contains an analysis of IS Twitter supporters from June to October 2015.

23 Te Tari Taiwhenua Department of Internal Affairs “Digital Violent Extremism Transparency Report”, 31.

24 Tech Against Terrorism, “The Threat of Terrorist and Violent-Extremist Operated Websites” (Tech Against Terrorism, London, 2022), 3, https://www.techagainstterrorism.org/wp-content/uploads/2022/01/The-Threat-of-Terrorist-and-Violent-Extremist-Operated-Websites-Jan-2022-1.pdf (accessed May 5, 2023).

25 Ryan Scrivens, “Examining Online Indicators of Extremism among Violent and Non-Violent Right-Wing Extremists,” Terrorism and Political Violence (advance online publication), doi: 10.1080/09546553.2022.2042270. Little is empirically known about the differences in the online patterns of violent terrorists compared to non-violent extremists who share similar ideological beliefs.

26 See, for example, Emma Ylitalo-James and Andrew Silke, “How Proximity and Space Matter: Exploring Geographical & Social Contexts of Radicalization in Northern Ireland,” Studies in Conflict & Terrorism (advance online publication), doi: 10.1080/1057610X.2022.2083932; Zin Derfoufi, “Radicalization’s Core,” Terrorism and Political Violence 34, no. 6 (2022): 1185–206, doi: 10.1080/09546553.2020.1764942.

27 In contrast to Child Sex Abuse Material, a category of content that is widely considered to be inherently harmful.

28 To use the phrase coined by Mark Hamm for his 2013 book of the same name dealing with terrorism in prisons (Mark S. Hamm, The Spectacular Few: Prisoner Radicalization and the Evolving Terrorist Threat (New York City, NY: NYU Press, 2013).

29 In this vein ECHR cases in which the internet interference was not proportionate under Article 10 include: Ahmet Yildirim v Turkey App No 3111/10 (December 18, 2012) (indiscriminate blocking of access to Google); Cengiz and others v Turkey App Nos 48226/10 and 14027/11 (December 1, 2015) (indiscriminate blocking of access to YouTube); Kharitonov v Russia App No 10795/14 (23 June 2000) (collateral effects of blocking IP address of shared web-hosting service).

30 “Although it is hard to quantify the benefit of the removal of terrorist content and activity from the online sphere, it’s [sic] removal will almost certainly have an effect on the level of terrorism in society” (HM Government, “Impact Assessment,” 76).

31 Section 2 of the UK’s Terrorism Act 2006.

32 According to clause 53(8) of the Online Safety Bill, “terrorism content” means content that amounts to an offence specified in Schedule 5 of the Bill. Schedule 5 includes such offences as inviting support for a proscribed organization, encouragement of terrorism and dissemination of terrorist publications.

33 E.g., Julia R. DeCook, “Safe from “harm”: The governance of violence by platforms" Policy and Internet 14, no. 1 (2022): 63–78, doi: 10.1002/poi3.290 (referring to “symbolic and cultural violence”).

34 Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977).

35 These three values identified in Frederich Shauer, Free Speech: A Philosophical Enquiry (Cambridge: Cambridge University Press, 1982) were deployed by Lord Steyn in his judgment in the House of Lords case R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 at 126.

36 Article 19 of the Universal Declaration of Human Rights; Article 19 of the International Covenant on Civil and Political Rights; Article 10 of the European Convention on Human Rights.

37 See paragraph 77 of the judgment of Lady Hale and Lord Toulson in the UK Supreme Court case James Rhodes v OPO (by his litigation friend BHM) and another [2015] UKSC 32.

38 John Milton, Areopagitica; a Speech of Mr. John Milton for the Liberty of Unlicenc’d Printing, to the Parlament of England (London: Quarto, 1644).

39 Which is why it has been suggested that removing only violent propaganda made by terrorist organizations and leaving up the happy material (pictures of nurseries etc.) distorts the truth about the nature of these organizations (“On the importance of taking down non-violent terrorist content”, VOX-Pol Blog, 8 May 2019, https://www.voxpol.eu/on-the-importance-of-taking-down-non-violent-terrorist-content/ (accessed May 5, 2023)).

40 Article 10 of the European Convention on Human Rights applied as much to the songs of Pussy Riot as to the symbolic display of dirty laundry near the Hungarian Parliament: Mariya Alekhina and Others v Russia (App No. 38004/12) (2019) 68 EHRR 14.

41 Luis Velasco-Pufleau, “Jihadi Anashid, Islamic State Warfare and the Agency of Sound,” in Crime and Music, ed. Dina Siegel and Frank Bovenkerk (Cham: Springer, 2021), 233–43, doi: 10.1007/978-3-030-49878-8_12.

42 As stated by Lord Neuberger in the UK Supreme Court case James Rhodes v OPO (by his litigation friend BHM) and another [2015] UKSC 32, citing the earlier judgments of Lord Hoffman in Campbell v MGN Ltd [2004] UKHL 22 (para 59), and Lord Rodger in In re Guardian News and Media Ltd [2010] UKSC 1 (para 63).

43 See the judgment of Sedley LJ in the UK Court of Appeal case Redmond-Bate v Director of Public Prosecutions [1999] EWHC Admin 733 (para 20).

44 Joseph Blocher, “Nonsense and the Freedom of Speech: What Meaning Means for the First Amendment,” Duke Law Journal 63, no 7 (2014): 1423–81, https://scholarship.law.duke.edu/dlj/vol63/iss7/1/ (accessed May 5, 2023).

45 “Maximise Access to Information,” in Google, https://www.google.com/search/howsearchworks/mission/open-web/ (accessed May 5, 2023).

46 The European Court of Human Rights held in Norwood v United Kingdom App No 23131/03 at para 4 that a poster advocating the removal of Islam from the UK because of the 9/11 attacks did not enjoy the protection of Article 10 in light of Article 17 (abuse of rights). The invocation of Article 17 in this context looks like an overreaction and is not without its critics: Antoine Buyse, “Dangerous Expressions: The European Court of Human Rights, Violence and Free Speech,” International & Comparative Law Quarterly 63, no. 2 (2014): 491–503. The better explanation may well be that Mr Norwood’s conviction for incitement to hatred and violence was justifiable because his freedom of expression was acceptably qualified in the wider public interest.

47 As permitted by section 44 of New Zealand’s Films, Videos, and Publications Classifications Act 1993, in respect of banned materials.

48 “About the Internet Archive,” Internet Archive, https://archive.org/about/ (accessed May 5, 2023).

49 “Jihadist Content Targeted on Internet Archive Platform,” Europol, July 16, 2021, https://www.europol.europa.eu/media-press/newsroom/news/jihadist-content-targeted-internet-archive-platform (accessed May 5, 2023).

50 As stated by Lord Steyn in the House of Lords case R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 and by Lord Bingham in the House of Lords case R v Shayler [2002] UKHL 11 (para 21). In an era of disinformation it would be naïve not to recognize that the internet calls into question John Stuart Mill’s characterisation of the free competition of ideas as the best way to separate falsehoods from fact.

51 Compare the judgment of the European Court of Human Rights in Mustafa v Sweden (App No. 23883/06), in which the internet was the only means of hearing news in the applicant’s home language.

52 See the UK High Court case McNally v Saunders [2021] EWHC 2012 (QB), with thanks to Graham Smith for this reference.

53 See the judgment of the European Court of Human Rights in Magyar Helsinki Bizottság v Hungary (App No. 18030/11) at paragraph 168.

54 Article 20 of the Universal Declaration of Human Rights; Articles 21 and 22 of the International Covenant on Civil and Political Rights; Article 11 of the European Convention on Human Rights.

55 Voule, C. N., “Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association,” Report to the Human Rights Council, A/HRC/41/41, United Nations General Assembly, May 17, 2019, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G19/141/02/PDF/G1914102.pdf?OpenElement (accessed May 5, 2023).

56 “Social Media, Anger and Us”, presented by David Baddiel, directed by Laurence Turnbull, produced by Saskia Rusher, (December 13, 2021, BBC Two).

57 Tim Blumer and Nicola Döring, “Are We the Same Online? The Expression of the Five Factor Personality Traits on the Computer and the Internet”, Cyberpsychology: Journal of Psychosocial Research on Cyberspace 6, no. 3 (2012): Article 5, doi: 10.5817/CP2012-3-5.

58 Article 12 of the Universal Declaration of Human Rights; Article 17 of the International Covenant on Civil and Political Rights; Article 8 of the European Convention of Human Rights.

59 David Anderson, “A Question of Trust: Report of the Investigatory Powers Review” (London, Her Majesty’s Stationery Office, 2015), 27–28, https://terrorismlegislationreviewer.independent.gov.uk/wp-content/uploads/2015/06/IPR-Report-Web-Accessible1.pdf (accessed May 5, 2023).

60 Separating out the interests protected by privacy rights is complex in the online world. Closed groups and the use of encryption may suggest that private communications are at issue. Yet closed Telegram channels used by terrorists can attract thousands of members, all anonymous strangers to each other; and may be used to share terrorist propaganda that, by its very nature, appears to be incontestably public: Maura Conway, “Online Extremism and Terrorism Research Ethics: Researcher Safety, Informed Consent, and the Need for Tailored Guidelines,” Terrorism and Political Violence 33, no. 2 (2021): 367–80. If reasonable expectation of privacy is the yardstick, public expectations may vary wildly; Fiesler and Proferes found that Twitter users frequently did not appreciate the consequences of public tweeting (Casey Fiesler and Nicholas Proferes, ““Participant” Perceptions of Twitter Research Ethics,” Social Media and Society 4, no. 1 (2018): 1–14, doi: 10.1177/2056305118763366).

61 See the 2008 judgment of the European Court of Human Rights in Liberty and Others v The United Kingdom (App No 58243/00).

62 See the 2021 judgment of the Grand Chamber of the European Court of Human Rights in Big Brother Watch v UK (App. Nos. 58170/13, 62322/14 and 24960/15).

63 As in the 2008 case KU v Finland (App No. 2872/02) in which the European Court of Human Rights held that the government of Finland needed to have protective laws against online sexual abuse. Such rights are frequently invoked in privacy claims between individuals, e.g., confidentiality misuse of private information. The so-called horizontal effect of human rights.

64 Muscio v Italy (App. No. 31358/03).

65 E.g., Brenda Dvoskin, “Expert Governance of Online Speech” Harvard International Law Journal 64, no. 1 (2023).

66 See paragraphs 84–86 of the judgment of the UK Court of Appeal in HM Attorney General v NA [2020] EWCA Civ 122.

67 Cf. Evelyn Douek, “The Limits of International Law in Content Moderation” University of California Irvine Journal of International, Transnational, and Comparative Law 6, no. 1 (2021): 37–75.

68 Graham Smith, “Should We Be Building Online Prior Restraint Machines?” Society for Computers and Law, January 22, 2018, https://www.scl.org/articles/10123-should-we-be-building-online-prior-restraint-machines (accessed May 5 2023).

69 Evelyn Douek, “Content Moderation as Systems Thinking,” Harvard Law Review 136, no. 2 (2022): 528–606.

70 Cf. the European Court of Human Rights case of Markt Intern Verlag GMBH and Klaus Beermann v Germany, (App. No.10572/83) and the US Supreme Court case of Citizens United v Federal Election Committee, 558 U.S. 310 (2010).

71 Save in cases of “imminent lawless action”: Brandenburg v Ohio, 395 U.S. 444 (1969). The position under UK common law and the European Court of Human Rights is of course quite different because the right to freedom of expression may be proportionately curtailed in the wider public interest, specifically, in the terrorist context, in the interests of national security. Conversely, the UK (as a result of the ECHR) has adopted protections for privacy that go far beyond those applicable in the US. The position of the platform Gab is to enable any content that is protected by the First Amendment: “Annual Report”, Gab AI Inc., 27 May 2020, https://www.sec.gov/Archives/edgar/data/1709244/000110465920067852/annual_report.pdf (accessed May 5, 2023). Social media companies have been sued in the US for allowing terrorism uses, though the actions have failed by reference to causation or the Communications Decency Act 1996, section 230 immunity: Fields v. Twitter, 217 F. Supp. 3d 1116, 1118 (N.D. Cal. 2016), affd, 881 F.3d 739 (9th Cir. 2018); Goldstein v Facebook USDC 12 August 2020.

72 See paragraph 20 of the judgment of Lord Sumption in the UK Supreme Court case of Bank Mellat v HM Treasury (No 2) [2013] UKSC 39.

73 See paragraphs 49 and 52 of the judgment of the European Court of Human Rights in Cengiz and Others v Turkey (App. Nos. 48226/10 and 14027/11).

74 For disabled users, the freedoms and opportunities created by the internet may be far more important than these advantages.

75 Charlotte Columbo, “The History of OnlyFans: How the Controversial Platform Found Success and Changed Online Sex Work,” Business Insider Nederland, 14 September 2021, https://www.businessinsider.nl/the-history-of-onlyfans-how-the-controversial-platform-found-success-and-changed-online-sex-work/ (accessed May 5, 2023).

76 Konstantine Buhler, “The Rising Consumer Demand for Data Privacy and Autonomy,” Sequoia, 18 November 2021, https://www.sequoiacap.com/article/the-rising-consumer-demand-for-data-privacy-and-autonomy/ (accessed May 5, 2023).

77 See “A Declaration for the Future of the Internet”, April 2022, https://www.state.gov/wp-content/uploads/2022/04/Declaration-for-the-Future-for-the-Internet.pdf (accessed May 5, 2023), to which the UK, US and EU Member States among others are signatories.

78 Tarleton Gillespie, Patricia Aufderheide, Elinor Carmi, Ysabel Gerrard, Robert Gorwa, Ariadna Matamoros-Fernandez, Sarah T. Roberts, Aram Sinnreich and Sarah Myers West, “Expanding the debate about content moderation: scholarly research agendas for the coming policy debates,” Internet Policy Review 9, no. 4 (2020): 2–30, doi: 10.14763/2020.4.1512.

79 Evelyn Douek, “Content Moderation as Systems Thinking.”

80 “Transparency Report,” BitChute, 1 June 2022, https://static.helpjuice.com/helpjuice_production/uploads/upload/image/6342/direct/1654094104600-BitChute%20-%20Transparency%20Report%20-%20June%202022%20v2.pdf (accessed May 5, 2023).

81 Milo Trujillo, Mauricio Gruppi, Cody Buntain and Benjamin D. Horne, “What is BitChute? Characterizing the ‘Free Speech’, Alternative to YouTube,” (presented at 31st ACM Conference on Hypertext and Social Media, 13–15 July 2020), doi: 10.48550/arXiv.2004.01984.

82 “Hate Fuel: The Hidden Online World Fuelling Far Right Terror,” Community Security Trust Blog, 11 June 2020, https://cst.org.uk/news/blog/2020/06/11/hate-fuel-the-hidden-online-world-fuelling-far-right-terror (accessed May 5, 2023).

83 Andrew Bennett, Melanie Garson, Bridget Boakye, Max Beverton-Palmer and Akos Erzse, “The Open Internet on the Brink: A Model to Save Its Future,” (London: Tony Blair Institute for Global Change, 2021), https://www.institute.global/insights/tech-and-digitalisation/open-internet-brink-model-save-its-future (accessed May 5, 2023).

84 See the description of the first principle (“The Santa Clara Principles On Transparency and Accountability in Content Moderation,” https://santaclaraprinciples.org/ (accessed May 5, 2023)).

85 Graham Smith, “Speech vs. Speech”, www.cyberleagle.com Blog, 22 June 2021, https://www.cyberleagle.com/2021/06/speech-vs-speech.html (accessed May 5, 2023).

86 “Transparency Report: Terrorist Content Analytics Platform: Year One: 1 December 2020 – 30 November 2021,” (London, Tech Against Terrorism, 2022), 25.

87 See the description of the first principle (“The Santa Clara Principles”).