Terrorist Use of the Internet: Information Operations in Cyberspace

New CRS report address US federal government efforts to address cyberterrorism, includes comment on the Kill Switch Bill.
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New Study Documents Growing Role for Private Companies in Policing Online Communications

A new EDRI study finds that powers traditionally employed by law enforcement agencies and the judiciary “are silently being delegated by governments to ISPs and corporations under the guise of industry “self-regulation”. The report details significant efforts to entrust intermediaries with policing powers, surveys the impact of “voluntary ‘self-regulation’” on online content and draws attention to its repercussions for openness of the Internet and for innovation.

The study found that the term “self-regulation” is being inappropriately used to designate what amount to appeals to monitor, judge and sanction allegedly illegal websites and consumer behaviour. Proposed legislation and “non-binding guidelines” are forcing intermediaries into a position in which they can no longer avail themselves of legal protections — where they are obliged, in effect, “to police private online communications, often in blatant disregard of legal safeguards and even to impose sanctions for alleged infringements”.

“This fundamental change in the concept of “self-regulation” represents a danger for the core values of the Internet and the benefits that these values provide to society.” Should Internet intermediaries become “privatized enforcement systems”? Companies “come under intense pressure in relation to individual incidents that attract the interest of politicians and/or the press”. The measures recently taken by Visa, Mastercard, PayPal and Everydns against Wikileaks are a case in point.

The author catalogues international proposals that aim to persuade industry to engage in a vigilante system of monitoring and sanctioning, and include:

  • a series of ongoing ‘public-private dialogues’ organized by the European Commission to encourage hosting providers to engage in “extra-judicial rulings of illegality”
  • a 2010 European Commission funding proposal incentivising companies to engage in “self-regulatory” Internet blocking of allegedly illegal online material
  • discussions launched by the Council of Europe’s Assembly in 2010 whose “intention appears to be to increase the legal obligations of intermediaries” despite the fact that this would be “contrary both to the letter and the spirit of the 2003 Declaration on freedom of communication on the Internet”
  • 2010 OECD discussions, which aim to increase the responsibility of Internet intermediaries in advancing “public policy objectives”
  • the Anti-Counterfeiting Trade Agreement (ACTA), whose draft contains provisions that would encourage or coerce ISPs into policing their networks and enforcing extra-judicial sanctions, where they deem it to be appropriate
  • EU/India and EU/Korea bilateral free trade agreements, whose provisions would change the EU acquis on intermediary liability

The encouragement of extra-legal measures to limit access to information, proactive policing of the Internet and the exclusion of law enforcement authorities in investigating serious crimes are factors that contribute to the weakening of the rule of law and democracy.

While these appear to be regressive steps away from freedom, the NGO’s study found, for instance, that “the European Commission appears far from perturbed by the dangers for fundamental rights of this approach and appears keen to export the approach”.

“This process is gradually strangling the openness that is at the core of the Internet. This openness has enhanced democracy, has shaken dictatorships and has boosted economies worldwide. This openness is what we will lose through privatised policing of the Internet by private companies – what will we gain?”

UN focuses on use of Internet to counter appeal of extremist violence

Using the World Wide Web to craft and deliver effective counter-narratives to fight the appeal of extremist violence was the focus of a three-day, United Nations-organized counter-terrorism workshop which was held in Riyadh, Saudi Arabia.

“There is no single counter-narrative just as there is no single audience – we will aim to look at many different approaches,” the chairman of the UN’s Working Group on Countering the Use of the Internet for Terrorist Purposes, Richard Barrett, said at the workshop’s opening. “But we will focus on the best ways to use the internet to undermine the appeal of terrorism to expose its lack of legitimacy and its negative impact and to undermine the credibility of its messengers.

The workshop is the third in a series of undertaken by the United Nations Counter-Terrorism Implementation Task Force (CTITF) – through its Working Group on Countering the Use of the Internet for Terrorist Purposes – with the ultimate purpose of helping UN member states by giving them a snapshot of the current nature of the challenge and offer possible policy guidelines and projects.

In his remarks to the workshop, Mr. Barrett stressed the key elements that need to be incorporated into counter-narratives.

“First, we need a message that resonates with the individual at the same time as it addresses a larger audience; second, we need to criticize and undermine a particular mindset but at the same time offer an alternative,” Mr. Barrett said. “Third we need to keep the message simple and straightforward; it should allow for no possibility for contradiction or dispute. Fourth, possibly most important of all, we need to find the right people to deliver the message; people who command respect and have credibility in the vulnerable communities that the terrorists seek influence.”

Building on the outcomes of the previous workshops, the Riyadh conference is expected to launch a global effort aimed at understanding and leveraging the power of the Internet to expose the distortions of the narratives used by terrorists and explain the real consequences of their actions. Moreover, the meeting will provide a platform for developing specific projects focused on countering the appeal of terrorism, including tailoring counter-narratives for particular regions and audiences.

UN report confirms gap between law and reality, torture, secret detentions and police harassment in Tunisia under Ben Ali

The United Nations just published a report on its website which describes the fact-finding mission of the United Nations Special Rapporteur on the protection of human rights while countering terrorism in January 2010. On the basis of the evidence he gathered, he observed a pattern of unacknowledged detention being used vis-à-vis terrorist suspects. During the period of secret detention, terrorism suspects are at high risk of being subjected to torture and ill-treatment. The secrecy that surrounds custody and interrogations by the unit of the “Police Judiciare”, which is in charge of interrogating terrorism suspects (commonly referred to under its previous name “Directorate for State Security”, DSS), renders investigations into abuses improbable and, consequently, leads to a lack of accountability and to impunity. The Special Rapporteur further concludes that the judiciary does not effectively act as a safeguard against these practices, and that the restrictions on access to lawyer during police custody aggravate his concerns. The report will be discussed by the United Nationas Human Rights Council around the 7th of March 2011.

The report is the last official UN report to describe practices under the Ben Ali regime, and it was the first time in more than 15 years that the UN’s special procedures mechanisms visited the country for a fact finding mission.

Mission: no access to Ministry of Interior interrogation facilities
The Special Rapporteur met with the former Minister of Foreign Affairs, the Minister for Justice and Human Rights, Ministry of Interior officials, judges, parliamentarians, lawyers, academics and non-governmental organizations, in addition, he visited the Bouchoucha police detention facility and the Mornaguia Prison, where he interviewed several persons suspected of, or convicted for, terrorist crimes. More significant the Special Rapporteur was denied access to the interrogation facilities of the Sub-directorate for Criminal Affairs of the “Police Judiciaire”, also known as “Directorate of State Security”, DSS, where the overwhelming majority of the allegations of torture or ill-treatment took place.

The abuse of the definition of terrorism

In his assesment of Tunisia’s revised anti-terrorism law, the Special Rapporteur says clearly that the definition of terrorism does not fulfil the legality requirement contained in article 15 of the International Covenant on Civil and Political Rights or article 13 of the Tunisian Constitution. The Rapporteur concludes:

The current wide definition clearly carries the risk of broad application of counterterrorism legislation, which in turn means that the term “terrorism” may become diluted and lose its distinguishing stigma. This may have possibly far-reaching consequences for the rights to freedoms of expression, association and assembly.

According to the SR, the combination of the wide definition of terrorism, combined with the criminalization of preparatory acts of terrorism “allow for targeting as “terrorists” people who simply hold radical and unpalatable views without posing a real danger in terms of planning any violent acts.”

In the view of the Special Rapporteur, it appears that the scope of application of the terrorism provisions in the law has grown too wide and should be reduced. Any anti-terrorism law that is not properly confined to the countering of terrorism within the limits of human rights law is problematic, not only because an overly expansive scope of such a law weakens its own legitimacy and ultimately may prove to be counter-productive, but particularly because it may unjustifiably restrict the enjoyment of human rights pertaining to the exercise of peaceful activities, including dissent and political opposition through legitimate associations. The Special
Rapporteur identified the danger of a ”slippery slope” which not only results in persons being convicted of “terrorism” who do not deserve that stigma, but also endangers the effectiveness of the fight against terrorism by trivializing the phenomenon.

First clear indication of number of persons detained under Tunisia’s anti-terrorism law, and Tunisia’s structure of the internal security forces under the Ministry of Interior

The Special Rapporteur indicates that perhaps one person per day was arrested and/or detained on the basis of the anti-terrorism law. The official statistics that the Special Rapporteur received showed that overall 214 cases have been brought before a court in the seven years since its adoption, in which 1,123 individuals were involved. (So this number does not include people who were never tried.)

Furthermore, the Special Rapporteur received information about a number of cases, where the main “crime” seems to have been to have visited certain countries or even mosques, downloaded or watched certain programmes online, having held prayers together, or having met with others to discuss religious issues.

Regarding the structure of the security forces of the Ministry of the Interior, the Special Rapporteur was expressed concerns about the myriad of agencies that were responsible for countering terrorism.

Elements rendering the practical operation of counter-terrorism policing opaque are the use of several common names for what appears to be the same entity, namely the Subdirectorate of Criminal Affairs, formerly known as “DSS”, standing for the “Directorate of State Security” and the lack of publicly available information on its status and organization.

Back-dating of arrest dates resulting in a pattern of secret detention

Numerous testimonies collected by the SR indicated – and it was admitted by the authorities – that dates of arrest are routinely post-dated, thereby circumventing the rules about the allowed length of police detention and taking detainees out of the protection framework.

When the Special Rapporteur visited Bouchoucha, the police station in Tunis through which terrorism suspects pass before being transferred to pretrial detention, he discovered that all of the 25 detainees whose names were contained in the custody record in relation to terrorist crimes had been brought there by members of the “Police Judiciaire” in the late afternoon or evening and taken out once during the following night for an unspecified period (the officials present during the visit explained that such temporary transfers were indicated in pencil only and erased once the person returned) before finally being transferred before a judge in the morning of the next day. The recorded practice of very short official police custody in terrorism cases is in stark contradiction with reports by detainees and families about interrogations ranging from several days to a number of weeksbefore being brought before a judge. The police officers in Bouchoucha also denied
knowing where the “Police Judiciaire” holds the suspects before bringing them to Bouchoucha for registration into official detention. This pattern appears to be compatible with the many allegations received by the Special Rapporteur that people under investigation are typically in terrorism cases first held in unacknowledged police custody.

In a damning paragraph, the Special Rapporteur highlights that evidence brought to the attention of the Special Rapporteur indicated that suspected terrorists are routinely held in secret in a building of the Ministry of Interior in Tunis.

Detainees allegedly sleep either on the ground floor in rudimentary conditions in a number of cells grouped around a larger room, or in smaller cells in the basement. Interrogations also take place on upper floors. No person from the outside has access to these premises, so detainees are at the mercy of their custodians, which, in itself, puts pressure on them and may constitute inhuman treatment. The authorities, however, continue to deny that the Ministry of Interior detains persons within or close to its official premises. Despite repeated requests, they did not allow the Special Rapporteur access to the interrogation facilities of the Ministry.

The Rapporteur concludes:

On the basis of the evidence gathered, he observed a pattern of unacknowledged detention, operating in the city of Tunis under the interrogation authority of the Ministry of Interior, being used to detain terrorist suspects. During this period that precedes detainees’ official registration in police custody, they are also routinely subjected to torture and ill-treatment and denied access to a lawyer.

Torture and the use of confessions obtained under torture

Numerous cases of terrorism suspects brought to the Special Rapporteur’s attention indicate that ill-treatment and/or torture is perpetrated during initial, unacknowledged police custody or interrogations by what is commonly referred to as “DSS”, in particular if the suspects refuse to confess.

The details of these accounts suggest that these practices occur under the direct control of the Ministry of Interior and possibly even within or next to the premises of the Ministry. According to consistent allegations, suspects are regularly subjected to severe beatings on different parts of the body, including genitals, with fists, cables and batons, kicking, slapping, often combined with stripping of their clothes and suspensions (including in the so-called poulet rôti (“roast chicken”) position), even in ordinary offices of the Ministry. Some reports also described electroshocks and mock-drowning taking place in one particular room in the basement, especially in cases, where suspects resisted to making confessions. Other methods used included extended periods of sleep deprivation, burning with cigarettes, threats with rape, threats to family members and anal rape. The treatment was allegedly perpetrated by plainclothes officers of DSS.

The main purpose of the torture was to extract confessions, and sometimes testimonies about third persons. It normally stopped with the signing of papers that most suspects had not been allowed to read. However, the Special Rapporteur received allegations about instances of reprisals occurring in official places of detention in terms of beatings, threats and solitary confinement, for instance, for prisoners that had made calls for prayer or submitted complaints. In several cases, detainees were transferred from prisons back to the premises of the Ministry of Interior for interrogation and ill-treatment.

The testimonies also indicated that existing safeguards are ineffective in practice. Apart from the fact that the ill-treatment normally happens prior to the registration of police arrest, access to independent medical examinations, although provided for by law upon authorization by a judge, is practically never granted, and can therefore not be considered an effective safeguard. If at all, medical examinations take place months after the illtreatment was perpetrated, and therefore fail to produce evidence that can be used in court. The resulting “lack of proof” is then used by prosecutors and judges to ignore claims about torture and ill-treatment and, on that basis to reject requests for investigations.

No real accountability for torture

While noting the importance of at least some trials and convictions, the Special Rapporteur considers that the number of prosecutions or other clear findings related to torture remains disturbingly low when compared to the frequency and severity of the allegations he received. He is concerned that there are remnants of a climate of impunity within law-enforcement structures. This is all the more troubling in light of allegations that confessions are frequently used as evidence in court. He is therefore concerned that the lack of effective investigations into allegations of torture may have led and continue to lead to unfair trials and illegitimate court judgements, on the basis of which persons may be deprived of their liberty – one of the most severe interferences with fundamental freedoms – for years, sometimes decades. He therefore calls upon the authorities to reopen.

Overall, the Special Rapporteur is concerned that the judiciary appears to fail to act as an effective remedy when it comes to allegations of torture or ill-treatment. Numerous persons indicated that raising such allegations during trial practically never leads to any action by the judges. Unfortunately, the Special Rapporteur’s meetings with judges of the Appeals Court in Tunis did not take away his concern of that protocols that mention torture allegations and other written submissions on the issue are routinely ignored by the court.

This raises serious concerns in terms of the independence of the judiciary, guaranteed by article 65 of the Constitution and the Law No. 29 of 1967, exacerbated by indications thatthe Executive Branch, through the Supreme Council of the Judiciary (which is composed of the President, who is the Chairman, and the Minister of Justice as Vice-chairman, plus a majority of members either representing or appointed by the Executive Branch) controls many aspects of the judiciary, including appointments, promotions, transfers and disciplinary measures.

Clarification of rendition case of Laid Saidi

Concerning Tunisia’s participation in illegal forms of cooperation in counterterrorism, the Special Rapporteur has received allegations that Tunisian authorities were involved in holding a detainee sent to Tunisia by the United States’ Central Intelligence Agency, who was then transferred to other countries. Laid Saidi was reportedly seized in the United Republic of Tanzania, transferred to Malawi, then rendered to Afghanistan and further to Tunisia, where he was held for 75 days before being returned to his home country Algeria (see A/HRC/13/42, para. 133). According to the Government however Laid Saidi had arrived with a “special flight” on the 9 June 2004, where he was presented by four foreign security officials to Tunisian authorities at the airport of Tunis Carthage under the name of Ramzi Ben Fredj. The Tunisian security services conducted an audit and concluded that the person had usurped the identity of the real Ramzi Ben Fredj.

The person then acknowledged that he was actually Laid Saidi. The next day, on the 10 June 2004, Said was sent back with the same special flight to a “foreign country”; he was then still accompanied by the same foreign agents. Similarly, it has been alleged that Tunisian intelligence officials participated in interrogations of terrorist suspects in Afghanistan (see interview with Bisher Al-Rawi, A/HRC/13/42, annex II, case 4). The
Special Rapporteur regrets that, according to his information, the Government of Tunisia has not started any investigation into these allegations.

Harassment of defence lawyers

The Special Rapporteur received a number of allegations regarding obstruction of the work of defence lawyers, e.g. concerning restrictions on access to their clients and their clients’ files, but also about harassment in more general terms, in particular vis-à-vis those who defend terrorism suspects. This can take the form of interference with their correspondence, non-issuance of passports for international travel, but also go further to not allowing them to enter certain places, pressuring family members, etc.

YouTube is letting users decide on terrorism-related videos

YouTube and its parent company, Google, have been criticized by lawmakers for refusing to prescreen militant speeches and propaganda videos that have been cited in more than a dozen terrorism investigations over the last five years. Now the LA Times reports that rather than submit to policies that many argue would amount to an erosion of 1st Amendment rights, particularly in an open-access environment such as the Internet, YouTube is taking a decidedly more democratic path — let the customers decide.

The new category also is “potentially troubling,” said George Washington University law professor Jeffrey Rosen, because the phrase “promotes terrorism” is more subject to interpretation than the longstanding language in the YouTube guidelines that specifically forbids material that incites others to commit violence.

Study of legal provisions and practices related to freedom of expression, the free flow of information and media pluralism on the Internet in the OSCE participating States

The report presents the initial stage of research into the first comprehensive study of legal provisions and practices related to freedom of expression, the free flow of information and media pluralism on the Internet in the OSCE participating States. Read the preliminary report by Dr. Yaman Akdeniz here.

European Commission adopts internal security strategy

The “EU Internal Security Strategy in Action” adopted today comprises 41 actions to be regulated in the coming four years and is imed at implementing the extra powers in the field of home affairs acquired by the EU once the Lisbon Treaty came into force. It also responds to requests from the European Parliament to have EU-based data extraction and analysis on bank transactions to terrorist organisations, instead of sending all the banking data to the US, where such a programme has existed since 2001. Read COM(2010) 673 final here.

The EU Internal Security Strategy in Action identifies five strategic objectives and outlines a series of actions for each of them:

1. Disrupt international crime networks
– To identify and disrupt criminal networks, it is essential to understand their members’ methods of operating and their financing, the Commission says.

The Commission will therefore propose in 2011 EU legislation on the collection of Passenger Name Records of passengers on flights entering or leaving the territory of the EU. These data will be analysed by the authorities in Member States to prevent and prosecute terrorist offences and serious crimes.

– The Commission also suggests to revise the EU anti-money laundering legislation and setting up joint investigation teams

The Commission will propose legislation in 2011 to strengthen the EU legal framework on confiscation as well.

2. Prevent terrorism and address radicalisation and recruitment
The Commission stresses that the core of the action on radicalisation and recruitment is – and should remain –
at national level.

By 2011, and in partnership with the Committee of the Regions, the Commission will promote the creation of an EU radicalisation-awareness network.This network will consist of policy makers, law enforcement and security officials, prosecutors, local authorities, academics, field experts and civil society organisations, including victims groups. The Commission will also support the work of civil society organisations which
expose, translate and challenge violent extremist propaganda on the internet.

The Commission will in 2012 organise a ministerial conference on the prevention of radicalisation and recruitment at which Member States will have the opportunity to present examples of successful action to counter extremist ideology.

More importantly the Commission will in 2011 consider devising a framework for administrative measures under Article 75 of the Treaty as regards freezing of assets to prevent and combat terrorism and related activities, and it will develop a policy for the EU to extract and analyse financial messaging data held on its own territory.

3. Raise levels of security for citizens and businesses in cyberspace
– Establishment of an EU cybercrime centre (2013).
– Establishment of a network of Computer Emergency Response Teams (CERT) (2012).
– Establishment of a European information sharing and alert system, EISAS (2013).

The Commission adds:

The handling of illegal internet content – including incitement to terrorism – should be tackled through guidelines on cooperation, based on authorised notice and take-down procedures, which the Commission intends to develop with internet service providers, law enforcement authorities and non-profit organisations by 2011. To encourage contact and interaction between these stakeholders, the Commission will promote the use of an internet based platform called the Contact Initiative against Cybercrime for Industry and Law Enforcement.

4. Strengthen security through border management
– Establishment of European external border surveillance system, EUROSUR (2011).

EUROSUR will establish a mechanism for Member States’ authorities to share operational information related to border surveillance and for cooperation with each other and with Frontex at tactical, operational and strategic level. EUROSUR will make use of new technologies developed through EU funded research projects and activities, such as satellite imagery to detect and track targets at the maritime border, e.g. tracing fast vessels transporting drugs to the EU.

According to EU observer “Eurosur is likely to spark controversy among human rights groups
pointing to the fallacy of mashing together asylum seekers and irregular
migrants with traffickers and organised crime lords. “

– Better analysis to identify ‘hot spots’ at the external borders (2011).
– Joint reports on human trafficking, human smuggling and smuggling of illicit goods as a basis for joint operations (2011).

The Commission shrewdly states that Frontex should be able to process personal data.

During its operations, Frontex comes across key information on criminals involved in trafficking networks. Currently, however, this information cannot be further used for risk analyses or to better target future joint operations. Moreover, relevant data on suspected criminals do not reach the competent national authorities or Europol for further investigation. Likewise, Europol cannot share information from its analytical work files. Based on experience and in the context of the EU’s overall approach to information management, the Commission considers that enabling Frontex to process and use this information, with a limited scope and in accordance with clearly defined personal data management rules, will make a significant contribution to dismantling criminal organisations. However, this should not create any duplication of tasks between Frontex and Europol.

5. Increase Europe’s resilience towards crises and disasters
– Proposal on the implementation of the solidarity clause (2011).
– Proposal for a European Emergency Response Capacity (2011).
– Establishment of a risk management policy linking threat and risk assessments to decision making (2014).

The Commission will submit an annual progress report to the European Parliament and the Council. The Commission will support the Standing Committee on Operational Cooperation on Internal Security, COSI, which will play a key role in ensuring the effective implementation of the strategy.

Implementing the strategy: the role of COSI
The Commission will support the activities of the Standing Committee on Operational Cooperation on Internal Security (COSI) to ensure that operational cooperation is promoted and strengthened, and that coordination of the action of Member States’ competent authorities is facilitated.

Comments
Commissioner Malstrom:

“EU internal security has traditionally been following a silo mentality, focusing on one area at a time. Now we take a common approach on how to respond to the security threats and challenges ahead. Terrorism, organised, cross-border and cyber crime, and crises and disasters are areas where we need to combine our efforts and work together in order to increase the security of our citizens, businesses, and societies across the EU. This strategy outlines the threats ahead and the necessary actions we must take in order to be able to fight them. I encourage all relevant actors to take their responsibility to implement these actions and thereby to strengthen EU security”, said Cecilia Malmström, Commissioner for Home Affairs.

Background
In February 2010, the Spanish EU Presidency outlined the security challenges for the EU in an Internal Security Strategy (“Towards a European Security Model“), and called on the Commission to identify action-oriented proposals for implementing it.