Abstract: Political campaigns use several methods to implore voters to vote in a particular direction. Whether it be through the press, news media, radio or the Internet, campaigns have always embraced emerging technologies and have utilized various platforms in the best interest of their candidate. As the world has become increasingly digital, voters are looking to the Internet when researching candidates. Recently, social media, google search, blog posts and other online mediums have been sources of information to the voter that had not previously existed. Having acknowledged this, many campaigns strategically have utilized the web to gather information on voters. The question this paper seeks to address is whether a campaign’s use of technology, primarily in their application of social media and search engines, have any legal implications.
Part I of this paper gives a brief overview of recent ways in which the Internet has taken a role in modern political campaigns. Part I will also go into detail about two specific campaign methods. The first method addresses the targeting of users through social media platforms such as Facebook. The second method shows how search engine manipulation can alter the perception of a specific candidate. Part II will explore the legal implications of these campaign tactics. This portion will also explore how the different legal entities interact election law and their oversight over the campaign process. This section will also raise several hypotheticals to better understand how the law could be applied to in situations where the Internet can deeply influence voters. The last section, Part III, will discuss whether the current laws are adequate in addressing the Internet’s influence over politics or whether there should be novel solutions for this issue.
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According to press reports in December of 2015, terrorist Tashfeen Malik posted her allegiance to ISIS on her Facebook account before killing 14 innocent civilians at the County Health Department in San Bernardino, California. Though Facebook had removed her account as violative of internal company rules, the government was not immediately alerted by the company to the existence of the post — or the possibility of an attack. In a more recent example, gunman Omar Mateen checked his own Facebook posts and other social media accounts during the five-hour standoff in the Orlando bar where he killed 49 people on June 19, 2016, to verify that his pledge to Abu Bakr al-Baghdadi, the leader of the Islamic State, had been properly publicized. We suggest in this article that socialmedia companies, like other corporate entities, should be legally required to institute compliance programs that ferret out and report terrorist activity at the earliest possible opportunity. Most of these companies, such as Facebook, Twitter, YouTube, and Instagram, already have internal rules against messages that might violate the federal prohibition against material support to terrorists or to a Foreign Terrorist Organization. Lesser known and new sites, such as Tumblr and Soundcloud, and even nonprofits such as Internet Archive in San Francisco, should be forced to follow suite. Additionally, many of these companies already have both a method of internal reporting by other users against rule-breakers, as well as computer programs that seek out key words to alert company monitors that a breach of internal rules might be occurring. We suggest two supplementary federal proposals.
The first would create a new substantive offense; it would criminalize the failure by social media companies to discover terrorism-related posts by its users and to immediately release the posts to the government. A social media company would be guilty of this new crime if it knowingly, recklessly, or even negligently failed to institute a government-approved compliance program and report any suspicious results it discovered through its program to federal authorities. We realize that this proposal is strong medicine. However, we believe that the danger of online terror activity warrants such a vigorous federal response. This proposal does not replicate the Online Terrorism Activity Act recently proposed by Senator Feinstein, though we agree that her bill ought to be enacted. We are not suggesting merely that the social media companies be required to report known terrorist activity to federal law enforcement agents. Rather, we would require such companies to monitor customers for compliance with 18 U.S.C. sections 2339 to 2339D and other terrorism offenses on pain of criminal liability. And rather than automatically shutting such accounts down when they are discovered, which may have adverse unintended consequences, we would shift those decisions to the FBI experts best suited to make them. In some cases, it might serve intelligence needs to allow the postings to continue. Moving the loci of such decision-making from a private company to the government might also allow innocent and aggrieved users to pursue avenues of redress.
The second proposal is to simply grant these companies leniency at sentencing should they be found liable under the federal doctrine of respondeat superior for the material support crimes of their agents. The federal government does this already with corporations, primarily in the white collar crime arena, to prevent the violation of federal criminal statutes or, failing that, to assist the government in discovering whom within the corporation committed the offense, and to prevent its recurrence. This strategy will likely not be nearly as effective as a tool against terrorism as our first proposal, as federal prosecutors have not yet attempted to charge social media companies for the crimes committed or assisted by their agents, and such agents may not have the required mens rea regarding postings by the users. Such a strategy works best when the corporation is facing criminal liability, with its attendant high-dollar fines, for its own violations. It is doubtful that social media companies will consider themselves sufficiently exposed under current substantive terrorism law to bother with the expense of such programs. However, because it will be less effective at criminalizing corporate behavior, and because it does not directly impinge on the privacy rights of social mediausers, this proposal might be politically palatable; it effects only those entities already found to have committed a serious federal felony, and it does not require offending companies to reveal offending posts to the government.
In Part I of this Article, we review the development of terror activity in today’s globalized environment, including the high rate of reliance on the Internet and mobile applications. In describing the very well-known danger of terrorism, we focus on “lone-wolf” terrorists and the enormous difficulty of finding such individuals and stopping them before they attack. The internet has made this problem all but impossible to solve, and therefore companies that make their fortunes utilizing the internet must become part of the solution. A Brookings Institute Report estimates 46,000 to 70,000 Twitter accounts used by ISIS supporters from September to December of 2014, and a George Washington University Study counted 900 active FBI investigations against ISIS sympathizers, 250 Americans who have traveled or attempted to travel to Syria/Iraq to join the Islamic State, and 300 Americans and/or U.S.-based ISIS sympathizers active on social media. In Part II, we will respond to perceived insufficiencies in existing legislation and in recent legislative proposals. We will also set forth proposals to address the liabilities of companies to enable the governmental review and discretion of potential terror activity online. In addition to both of our proposals, we offer precedents for such governmental action, including the Federal Guidelines pertaining to organizations, criminal and civil regulations regarding the Foreign Corrupt Practices Act, the Bank Secrecy Act, and international bodies in the enforcement of copyright law. Once compared to these other criminal and regulatory measures, the proposals are not as shocking as they might first appear.
In Part III, we respond to both historical and anticipated opposition, grounded in constitutional arguments, to the proposed legislative framework in Part II. We believe that neither proposal would violate the Fourth Amendment protection against unreasonable searches and seizures, nor the First Amendment’s protection of speech and association. A long line of precedent confirms that the Fourth Amendment offers no reasonable expectation of privacy in communications voluntarily revealed to third parties. And the Court’s relatively recent 6-3 opinion in Holder v. Humanitarian Law Project, upholding the material support statute against a First Amendment freedom of speech and freedom of association and Fifth Amendment Due Process vagueness challenge, lends significant support to the validity of our proposals.