BEYOND TERRORISM: THE POTENTIAL CHILLING EFFECT ON THE INTERNET OF BROAD LAW ENFORCEMENT LEGISLATION

St. John's Law Review, Spring 2006 by Gardella, Todd M

INTRODUCTION

Terrorists manipulate themselves to society's center stage by exploiting the omnipresence of the media within the modern information age. It is generally understood that, for so much as the cause of modern international terrorism seems to cast itself as diametrically opposed to western values and modernity, its proponents are unafraid to utilize the Internet to further their goals of disruption and destruction. In many ways, the information age is the great enabler of terrorism, providing not only the channels for terrorists to communicate amongst themselves throughout the globe, but also providing them the opportunity to amplify their voice, spread their message, and permeate the homes of those plugged into the modern world of interconnectivity.

Both the ubiquity of the Internet and its connection with terrorism distinguish the new millennial era from previous eras of war or crises. The United States' war on terrorism comprises a global effort; terrorism's war on the United States pervades the consciousness of the interconnected multitudes in an effort to shatter our political will.1 In many ways, the decentralized, networked, and amorphous characteristics of the Internet resemble those of the modern terrorist infrastructure. The same properties that make the Internet such a powerful conduit for progress, free expression, and the unhindered exchange of ideas also make it an ideal haven from where those who wish to perpetuate terror can strike. So far as the Internet is concerned, this is the conundrum faced by lawmakers as they seek to confront terror. The policies formed from the rapid enactment of antiterrorism legislation will likely have an adverse effect on the online environment that has burgeoned in the absence of regulation. The difficulty lies in discerning where to draw the line between legislation that may provide only ancillary benefits to antiterrorism efforts while burdening civil liberties, and legislation that may thwart terrorism and justify the sacrifice of certain freedoms.

It is easy to take for granted the ability to speak freely. It may seem quaint to talk of the need to protect some of these fundamental liberties amidst the images of terror on the evening news and throughout the Internet. But now is precisely the time to evaluate the freedoms that recent generations have been able to take for granted. The protections afforded by the First Amendment to each citizen of this country appear more fragile and certainly less quaint when one considers that most countries afford no such protections, and in fact may be retreating from any protection that may have existed.2

The freedom versus security grapple has enveloped public debate since the establishment of the United States.3 It is impossible, however, to undertake this familiar debate without examining First Amendment freedoms against the modern backdrop of the information age. Unfortunately, there are no robust principles that comport with an era so dependent upon the First Amendment.4 Similarly, there is no analogue in history to the modern threat of global terrorism that plagues the information society. It is therefore conceivable that existing First Amendment jurisprudence may not provide the appropriate framework to properly evaluate the degree to which the Internet may withstand the erosion of certain civil liberties.

With the prevalence of the Internet, the considerations attendant to its existence and role within society become an integral component to the freedom-security dialectic. Of specific interest within the scope of this Note is whether we should allow for broader exceptions to First Amendment protections to afford us a method by which to combat terrorism. While acknowledging the validity of both the distress over free speech abridgment and the desire to ensure the safety of our nation and its citizens, this Note seeks to explore whether cyberspace requires analysis distinct from that which applies to the traditional free speech areas. To this end, Part I of this Note addresses the enactment of those antiterrorism laws which potentially burden free speech and the debate over whether those laws should be truncated or expanded. Part II sketches the twentieth century evolution of First Amendment jurisprudence and the application of free speech principles to the Internet. The analysis in Part III defends the quick action taken by Congress to grant authority in an emergency situation, but qualifies that defense by reinforcing the need for deliberation. The analysis then shifts to pinpointing those considerations for deliberation unique to the Internet and seeks to identify some of the dangers of broadening authority beyond the scope immediately necessary to confront the modern threat of terrorism.

I. FREE SPEECH CONCERNS ARISING FROM THE PATRIOT ACT AND OTHER ANTITERRORISM LAWS

A. The Civil Liberties Abridgment Inherent in Antiterrorism Legislation

Congress passed the Patriot Act into law on October 29, 2001.5 The enactment of such a sweeping bill just over a month after the worst terrorist act this nation had ever suffered suggests a lack of deliberation.6 This urgency reflected the desperation the citizens of this country felt as a whole. But the Patriot Act was not the first piece of legislation to address terrorism.7 Nor was it the first to be challenged as violative of First Amendment rights.8 The Patriot Act, however, expanded much of the prior legislation.9 As its formal name-Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act-suggests, the Patriot Act packaged numerous amendments that altered many of the previous laws to provide for greater law enforcement capabilities.10 As such, it remains the culmination of the antiterrorism effort. In fact, the name "Patriot Act" carries with it the connotation of all antiterrorism activity, and is both a rally point for supporters and a target for critics.11