Last week there was a bizarre and ill-informed post by music industry lawyer Chris Castle — who has a weird infatuation with the idea that Google must be pure evil — in which he tried to argue that because YouTube wasn’t able to take down propaganda videos showing ISIS atrocities fast enough, that Google was providing “material support” for terrorism. As Castle notes:
Google’s distribution of jihadi videos on Google’s monopoly video search platform certainly looks like material support of terrorists which is itself a violation of the federal law Google claims to hold so dear. (See 18 U.S. Code §2339A and §2339B aka the U.S. Patriot Act.)
Of course, there are all sorts of problems with the Patriot Act, including its definitions of “material support of terrorism,” but to stretch the law to argue that providing an open platform and simply not removing videos fast enough (the videos in question all got removed pretty rapidly anyway, but not fast enough for Castle) is somehow “material support for terrorism” is flat out crazy. It stems from the same sort of confused logic that Castle has used in the past, arguing that Google and others must magically “just know” what is infringing and what is not — suggesting a true lack of understanding about the scale of offerings like YouTube and the resources needed to sort through all the content.
We were inclined to simply dismiss Castle’s nuttiness to the category of “WTF” where it belongs… until at a conference earlier this week, a DOJ official, John Carlin, who holds the role of assistant attorney general for national security, appeared to suggest that anyone helping ISIS’s social media campaign could be guilty of “material support” for terrorism:
John Carlin, the assistant attorney general for national security, told a cybersecurity conference in Washington on Monday that officials could try to blunt ISIS’s violent PR operation by essentially trying propagandists as terrorists. He suggested the Justice Department could bring prosecutions under the law against providing material support to a terrorist organization. His remarks were believed to be the first time a U.S. official has ever said that people who assist ISIS with online media could face criminal prosecution.
Carlin was asked at the conference whether he would “consider criminal charges” against people who are “proliferating ISIS social media.”
His answer: “Yes. You need to look at the particular facts and evidence.” But Carlin noted that the United States could use the material support law to prosecute “technical expertise” to a designated terrorist organization. And spreading the word for ISIS online could count as such expertise.
Carlin seems more focused on someone tweeting a link to ISIS propaganda or something along those lines, which would raise significant First Amendment issues, but his comment about “technical expertise” could certainly be turned around and put upon YouTube, Twitter, Facebook and other providers of social media tools. That would create a huge mess, and open a Pandora’s box that would undermine one of the key premises of the internet that has made it so successful.
Is the DOJ really looking to undermine the entire internet, just because some terrorists have figured out that it’s a good way to get out their message?
Meanwhile, if you want to see just how far this sort of ridiculous thinking takes you — at the same time that people like Castle and Carlin are arguing about how YouTube may be supplying material support for terrorists, YouTube was deleting videos that were being used to document ISIS war crimes. YouTube has been rushing around trying to take down all kinds of ISIS and other terrorist content for a while now — ever since then Senator Joe Lieberman demanded that YouTube block terrorist videos. And, the end result is that important channels that catalog and archive evidence and documentation of war crimes are being taken down. And, this is not the first time this sort of thing has happened.
When you start accusing these platforms of having some sort of liability (potentially criminal liability in the form of “materially supporting terrorists” for merely providing an open platform that anyone can use, you are more or less guaranteeing that important content, such as that which documents war crimes and atrocities gets banned as well. Is that really what Castle and Carlin are looking to do?