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

In its haste, Congress packed provisions into the Patriot Act that had been undergoing extensive debate, independent of any overarching terrorist purpose, before September II.162 Congress did not have time to ensure that the legislation abridging civil liberties was drafted narrowly.163 The courts, by applying strict scrutiny, have begun to determine that some provisions fail the test that a law be sufficiently narrow to serve a compelling government interest164 Lawmakers themselves have also introduced proposals to curtail those provisions unjustifiably adverse to civil liberties, evidencing a desire to reopen some of the debates which had been ongoing before the enactment of the Patriot Act.165 These debates would necessarily take on a distinct post-9/11 perspective, but would be debates nonetheless.

Within its proposed Domestic security Enhancement Act, the Justice Department included provisions that would grant it even broader authority.166 It may be debated whether these proposals would only incidentally serve the fight against terrorism and whether such ancillary benefits justify the abridgement of civil liberties. But as the title of the draft suggests-Domestic security Enhancement Act-the aggregate of these proposals transcends any purported antiterrorism purpose. Included are provisions having nothing to do with terrorism.167 Some lawmakers expressly criticized this absence of a relationship with terrorism.168 Once again, close scrutiny must be applied during legislative deliberation to each provision and its potential ramifications.

The computer fraud provisions within the Patriot Act169 and the encryption provisions among the new proposals170 serve as two concrete examples that affect the computer industry yet have no primary focus toward stemming terrorism. Of course, that is not to say that such provisions would never provide any benefit to the cause of fighting terrorism. But, pursuant to the principle that legislation which abridges civil liberties be drafted narrowly,171 such speculation of potential achievement cannot pass muster. While either provision may provide effective law enforcement in its own right, to strike an honest balance between proper government activity and improper infringement on rights, it is crucial to separate such provisions from those laws with the direct goal of combating terrorism.

C. On the Effects of Prosecuting Online Service Providers

A new government strategy to pursue terrorist activity on the Internet targets hosting websites, despite the fact that the host is not necessarily the author of the content.172 Prosecutors charge that administrators of websites should be held criminally liable for what appears on their sites.173 To this end, the government seeks to exploit the "expert advice or assistance" definition within the material support provision of the Patriot Act.174 Other law enforcement initiatives have legitimately thwarted the ability of terrorists to use the Internet, such as the government's campaign against the financial support of terrorists.176 The financial support campaign, however, can be distinguished from the "expert advice or assistance" initiative because it is limited to targeting financial support servicescomprising only a fraction of total Internet activity-using specific regulations.176 A campaign against website administrators, however, threatens to affect the functionality of the Internet itself and signals a heightened risk of chilling Internet activity.177