A new bill introduced by Democratic senator Dianne Feinstein and Republican senator Richard Burr would oblige social media companies to report "terrorist activity" to the authorities.
The short, three-page bill is called the "Requiring Reporting of Online Terrorist Activity Act" and effectively clones a similar law requiring companies to report child abuse images.
If it passes, the new law would require any company "engaged in providing an electronic communication service or a remote computing service to the public" to report "actual knowledge of any terrorist activity, including the facts or circumstances" and to do so "as soon as reasonably possible."
In essence it would oblige Facebook, Twitter, Instagram and so on to scour their data and actively report to the US government anything that they felt was "terrorist activity."
The same measure was reportedly included in a secret, classified bill that approved the intelligence agencies' various programs – Burr and Feinstein are chair and vice-chair of the Senate Intelligence Committee – but was pulled from the final version. Following the recent shooting in San Bernardino, California, they decided to put the measure out as a separate, public bill.
"Social media is one part of a large puzzle that law-enforcement and intelligence officials must piece together to prevent future attacks," said Senator Burr. "It's critical Congress works together to ensure law-enforcement and intelligence officials have the tools available to keep Americans safe."
Not so fast
Another member of the committee, and a persistent critical voice in the security services' efforts to expand its influence across the entire communications infrastructure, Senator Ron Wyden, was not impressed however.
"I'm opposed to this proposal because I believe it will undermine that collaboration and lead to less reporting of terrorist activity, not more," he said. "It would create a perverse incentive for companies to avoid looking for terrorist content on their own networks, because if they saw something and failed to report it they would be breaking the law, but if they stuck their heads in the sand and avoided looking for terrorist content they would be absolved of responsibility."
He also noted: "Let's make sure the record is clear: the Director of the FBI testified a few months ago that social media companies are 'pretty good about telling us what they see.' Social media companies must continue to do everything they can to quickly remove terrorist content and report it to law enforcement."
Why it's a bad idea
Companies such as Facebook and Twitter have recently stepped up their efforts to shut down accounts that are used to promote violent or racist ideologies; Facebook was specifically criticized by German chancellor Angela Merkel a few months ago for not tackling a wave of hate speech about migrants into Europe from Syria and elsewhere.
While Wyden's suggestion that companies would do less to remove offensive material if they were legally required to report it may seem a little far-fetched, the reality is that, unlike child abuse images, "terrorist activity" is a difficult concept to define.
It would almost certainly play into the prejudices of whoever the social media companies assigned to review potentially infringing posts (the color of people's skin or their religion); it would require the creation of a definition of "terrorism" that has continued to elude experts for several decades; it would presumably extend into written rather than solely pictorial information; and it would almost certainly result in dangerous over-the-top responses from the government in response to what may be misunderstood or satirical comments made online.
In other words, it sounds like a poorly thought-out, knee-jerk reaction that would almost certainly fail a First Amendment challenge. ®