Balancing Liberty and Security in the Fight Against Terrorist Propaganda

Bottom Line Up Front

• A new U.K. law criminalizes accessing terrorist propaganda online, punishable by a prison sentence of up to 15 years.
• Responding to the ubiquity of this propaganda, the new law updates existing legislation that criminalized collecting or archiving terrorist materials.
• Proponents claim that these laws will prevent people from accessing terrorist propaganda, thus lowering the chances of online radicalization.
• Human rights advocates have criticized the laws, despite exceptions for researchers, academics and others who access the materials for legitimate purposes.

In February, as part of its Counter-Terrorism and Border Security Act, the United Kingdom passed a law that criminalizes accessing terrorist propaganda and other related materials online, punishable by a sentence of up to 15 years in prison. A previous U.K. law included language criminalizing collecting or archiving terrorist materials, but policymakers removed this language from the new law, thus broadening its mandate to account for the prevalence of streaming propaganda videos. The U.K. used this law to prosecute individuals who had downloaded and stored propaganda and materials on their computers.

Proponents claim that the new law will deter individuals from accessing terrorist materials online, which will prevent or reduce radicalization. They also say that the law will not affect journalists, academics, terrorism analysts or others who have legitimate cause to examine propaganda or happen upon it accidentally. These individuals will reportedly be able to provide evidence of their credentials or activities to demonstrate that they are not accessing the materials for nefarious purposes, and the burden of proof will then be on prosecutors to prove otherwise.

This type of law may offer states an option for prosecuting returning foreign fighters from conflicts in Iraq and Syria. Countries have debated how to handle returnees since the collapse of the so-called Islamic State’s caliphate. Some states have prosecuted returnees for crimes committed abroad or for their membership in IS or other militant groups, but many cite the difficulty of collecting evidence that can be used in court. The new law gives the British government more leeway in prosecuting returnees that were engaged in producing or disseminating terrorist propaganda online, either in addition to or instead of tangible evidence of other crimes that may have been committed on the battlefield. The U.K. has favored measures like refusing entry and stripping citizenship, recently revoking the citizenship of 19-year-old Shamima Begum. That solution is not sustainable, however. Rendering individuals stateless violates international law. Further, refusing foreign fighters (and their family members) reentry or stranding dangerous individuals in states recovering from conflict may make peacekeeping efforts more difficult or exacerbate future conflict. As Ali Soufan recently noted in a discussion with former CIA director John Brennan, ‘By taking citizenship away from all those people who traveled to join the Islamic State, we are creating citizens of the Islamic State.’

The new U.K. law is part of a broader trend, especially among European governments, of restricting access to certain types of materials online, especially terrorist propaganda and other content. American social media companies like Facebook and Twitter have also made efforts to remove offensive or allegedly dangerous materials from their platforms, sometimes via automated processes. However, this attempt to scrub social media of terrorist content may make prosecuting returning foreign fighters more difficult and impede other intelligence efforts. The United Nations Special Rapporteur on the right to privacy has raised objections to the law, noting that the restrictions indicate a trend towards criminalizing thoughts, not actions. States face the difficult task of balancing their national security interests with fundamental rights and freedoms. However, legislation that criminalizes accessing certain kinds of information risks a chilling effect on legitimate research and analysis. It may also have the unintended consequence of states being unable to develop a more nuanced understanding of terrorist groups and their activities and may even hinder states’ ability to hold perpetrators accountable or prevent future conflict.