On 29 September 2010, the US House Foreign Affairs Committee held a hearing on proposed strategies for dealing with websites that promote Islamic terrorism. The hearing opened with a statement from Brad Sherman (D-CA) in which he called for a harder line against websites that promote terrorist activity. He harshly criticized the arguments for the "politically correct response" of tolerating the websites so they can be monitored and used by law enforcement to keep tabs on violent Islamist movements. He asserted that:
Our enemies have decided that, even though we have the capacity to monitor, the Internet serves their purpose. So those that argue that our ability to monitor means that extremist Web sites are helping us more than they are helping our enemies have got to reflect on the fact that our enemies have analyzed this and come to the exact opposite conclusion (Hearing, p. 1).
The representatives and witnesses joining him at the hearing generally shared this viewpoint. In spite of advocating a hardline, those who spoke did acknowledge the Constitutional and free speech concerns any government action against pro-terrorist websites would provoke. The most legalistic analysis of the issue was provided by Gregory S. McNeal, JD, an Associate Professor of Law at Pepperdine University (his prepared statement can be found here). He suggests that the first step should always be a "name and shame" approach of calling on US companies that provide internet services to designated terrorist organizations and ask them to stop. The pressure from public revulsion to terrorism is usually enough to get companies to comply. McNeal adds that threats of civil and even criminal penalties should be used if they refuse. After this, there is still the problem of terrorist websites utilizing foreign Internet service providers (ISPs) and hosting services that are often beyond the reach of domestic public pressure and US legal authority. McNeal suggests an innovative solution to this problem:
While the terrorist organization itself may not be deterred by US efforts, their ISPs are vulnerable to commercial pressure and the desire to maintain their business, the majority of which likely comes from non-terrorist clientele. These ISPs are the critical and weakest link in the terrorist’s Web presence. Accordingly, a cyber embargo is the quickest and most effective way to cease their support of terrorist organizations. Such an embargo focuses on those ISPs that are providing material support to terrorist Web sites in the form of Web services.
This is true because, after being forced off of US network service providers, a terrorist Web site will need to receive an IP address and connection to the Internet from overseas providers. I propose a modification to existing statutes to create a new cyber supporter designation that will sweep these ISPs within the sanction of US laws. Under this approach, US companies and persons will be forbidden from doing business with a designated cyber supporter. The practical result of such a designation will be to create a cyber embargo, cutting off streams of income to overseas companies due to their affiliation with terrorist organizations.
With a cyber embargo in place, companies that support terrorists will be forced to choose between losing all commercial services from the United States and continuing to provide services to the terrorist organization. The result is obvious; if the terrorist’s ISP was a major international telecommunications company and it was designated as a cyber supporter, then all US commercial services would be cut off, including Internet and financial services. In the face of such potential loss of income, that company would likely cease providing services to the designated terrorist group (Prepared Statement, pp. 1-2).
The legal authority for such an embargo would come from the International Emergency Economic Powers Act (IEEPA) and Executive Order 13224. McNeal proposes that offending foreign ISPs and domain name registrars be added to a Treasury Department list of officially declared supporters of terrorism. US-based companies would then be required to seek waivers from the Office of Foreign Assets Control (OFAC) before doing business with or providing services for blacklisted entities or face a potential civil penalty of $250,000 under IEEPA. He continues:
A true cyber embargo would entail creating a new process whereby those foreign communications companies that provide material support to terrorist organizations may be designated as "cyber supporters." Such a designation would prevent US companies from conducting business with designated entities. This process would create a virtual persona non grata. The interconnected nature of the World Wide Web requires that even those overseas companies that provide Web services to terrorist organizations (the material supporters) must still rely on other Web service providers, many of which are in the United States, to communicate. This reliance is the weak link in the cyber jihadist’s Web presence. Designating overseas Web providers as "cyber supporters" forces those companies to choose between either losing all commercial services from the United States or continuing to provide services to the terrorist organization.
How would such a designation work? I propose amending the US Code to create a category of "designated cyber supporter." US companies would be forbidden from engaging in commercial services with entities bearing such a designation. The designation would include elements of the material support statute but would limit itself to Internet companies. Moreover, the designation could include a provision that provides notice and a safe harbor provision that allows companies to sever ties to terrorist organizations to avoid being designated a "cyber supporter" (pp. 9-10).
Mr. McNeal wrote an entire article in the Case Western Reserve Journal of International Law that elaborates on his proposal for a "cyber embargo" on internet service providers that do business with terrorist groups and their supporters.
It is an intriguing proposal, but the slippery slopes inherent defining both "provision of services" and "support of terrorism" should raise concerns for all free speech advocates. The Supreme Court ruling in Holder v. Humanitarian Law Project makes it rather clear that the lower courts should defer to the government's "special interest" on defining both services and support. The court opinion asserted that any type of non-fungible service in coordination with a designated terrorist groups such as "training" or "expert advice or assistance" could be considered a form of "material support" even in the case that the advice given is for the sake of peaceful conflict resolution:
Given the sensitive interests in national security and foreign affairs at stake, the political branches have adequately substantiated their determination that, to serve the Government’s interest in preventing terrorism, it was necessary to prohibit providing material support in the form of training, expert advice, personnel, and services to foreign terrorist groups, even if the supporters meant to promote only the groups' nonviolent ends. […] Plaintiffs propose to "train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes." Congress can, consistent with the First Amendment, prohibit this direct training. It is wholly foreseeable that the PKK could use the [plaintiff's training] as part of a broader strategy to promote terrorism. The PKK could, for example, pursue peaceful negotiation as a means of buying time to recover from short-term setbacks, lulling opponents into complacency, and ultimately preparing for renewed attacks (SCOTUS ruling, pp. 31-32).
It is therefore the case that we should view any extension of the US government's financial blacklisting authority with utmost skepticism and concern for personal liberties. If such a proposal were implemented, it would not be inconceivable that the US would shut down sites for posting Hamas peace offers and material of that matter.