Should We Police Threats On Social Media?

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The United States has a well-developed jurisprudence for dealing with people who make threats. The default presumption, thanks to the First Amendment, is that any speech, even speech that is frightening, prejudiced or factually wrong, is legal. Even a generic desire for the President to die has First Amendment protection. The key precedents here are Watts v. United States and Brandenburg v. Ohio, both from 1969. In Watts, an 18-year-old remarked during a rally against the draft that:

“They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J.”

The ruling suggested that this was protected as merely ‘a kind of very crude offensive method of stating a political opposition to the President’, of a kind still very familiar to us today. Those prosecuted for threatening the President over the last few years have typically had additional evidence of actual conspiracy to commit murder.

In Brandenburg, a KKK leader’s advocacy of ethnic violence was ruled to be protected by the First Amendment, because it was not “directed to inciting” or “likely to incite, imminent lawless action.” There must be some specificity as to the time that the lawless action is to occur; it cannot simply be a generalized articulation of the need for violence at some future time. It must be, in other words, a so-called “true threat.”

These rulings have stood essentially unmodified for nearly half a century. They are also a lot more protective of threatening speech than most people, including surveillance state employees, casually assume. One result of that assumption is that surveillance agencies pro-actively monitor social media, and open investigations on the basis of First Amendment-protected threats they encounter, when the constitutionality of doing so is at best highly suspect.

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MA Fusion Center Reform Stalls Out

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Digital Fourth’s second major campaign is to close the fusion centers, which are like mini-NSAs that gather data on residents’ “suspicious activities” in violation of the Fourth Amendment. Now, the major fusion center reform bill in the Massachusetts legislature has died in committee. In this post, we’re exploring why the Free Speech Act was important, and the challenges that lie ahead for fusion center reform in the Commonwealth.

Fusion centers aim to “encourage effective, efficient, ethical, lawful, and professional intelligence and information sharing; and prevent and reduce the harmful effects of crime and terrorism.” In practice, thanks to devastating reporting by the ACLU and by the US Senate, we know that their “Suspicious Activity Reports” (SARs) system has never actually thwarted a terrorist attack; that they routinely spy on peaceful dissidents and collect unverified, sometimes racially motivated gossip; and that the ocean of data on which they rely is so vast that they cannot prioritize and synthesize it in a timely way. Our own report on Massachusetts’ Commonwealth Fusion Center uses their own documents to demonstrate major threats to Constitutional protections from the fusion centers’ work.

To his everlasting credit, Rep. (now Sen.) Jason Lewis introduced the Free Speech Act (prior analysis here) to deal with some of these issues. Sadly, the Judiciary Committee has not moved forward with that bill this session, though they advanced another important but less controversial electronic privacy bill.

This points up two problems, even in Massachusetts, of fusion center reform. One, it’s hard to get people up to speed on fusion centers. They’re a very low-profile part of the surveillance state. People get more easily fired up about the NSA, because it has been all over the news for a year, but it’s hard to grasp the fact that every state government is complicit in mass surveillance and has the power to defund their own mass surveillance efforts. The evidence is already out there for lawmakers not only to advance the Free Speech Act, but to wonder whether it goes far enough; but both fusion centers in Massachusetts have so far failed to respond to our FOIA requests seeking transparency into their activities.

Sen. Lewis comments:

[the Free Speech Act] “is an important step in reining in the data collection of fusion centers, and would protect individuals from the collection of data relative to those activities covered by the First Amendment. It is critical that we strike the right balance between security and privacy protections, and I believe that this legislation accomplishes just that. I am eager to continue to move forward with this legislation, either this year, or upon filing it again next session.”

Commonwealth Fusion Center Violates Constitution, New Report Says

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Massachusetts has two “fusion centers”, mostly state-funded, which aggregate enormous amounts of data on innocent Massachusetts residents, with the notion of preventing terrorist attacks. When you call the “See Something, Say Something” line, the information goes into “Suspicious Activity Reports.” The ACLU of Massachusetts documented that the Boston fusion center (“BRIC”) had actually spent its time harassing peaceful activists rather than thwarting terrorism, which is one of the reasons why there will be nationwide protests against fusion centers on April 10, including in Boston.

In response to the ACLU revelations, Rep. Jason Lewis (now the newly elected Sen. Jason Lewis) filed a fusion center reform bill on Beacon Hill. Disconcerted at the prospect of more sunshine on their work, the Commonwealth Fusion Center, the fusion center in Maynard, offered him and other legislators a courtesy tour of their facility, to try to explain what good work they were doing. As an example of that work, they cited their First Amendment-violating harassment of an Arlington man who was not actually planning any violent crime, but who had tweeted about it being a good idea to shoot statists. They also provided to Rep. Lewis copies of various policies that they follow, including their Privacy Policy (updated 06.13.2013) and their policy on First Amendment investigations. Rep. Lewis then asked Digital Fourth to evaluate the policies they had provided, to assess whether they were constitutional. We enthusiastically agreed, and the resulting report is here.

Here are our main recommendations:

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Be Afraid: The Surveillance State Is Powered By…Bing?

Ever feel that the surveillance state can’t be beaten? Have no fear. The cure is here, in the form of this case study. Authored by our friends at the world’s most popular, innovative and dynamic tech company, it shows that well before the XBox Kinect “let’s deploy real-time surveillance technology in every American home” debacle, Microsoft was busily trying to get its hands on a thrilling avalanche of federal dollars, available only to companies shameless and lickspittle enough to develop an entire suite of software dedicated to handling data collected without a warrant on millions of Americans.

Behold! [Fanfare.] The Microsoft Fusion Framework!

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