Are Open Source Contributors in Risk of Being Prosecuted for Providing Support of Terrorist Organisations?
US Representative (and incoming chairman of the House Homeland Security Committee) Peter King has requested the US State Department to classify Wikileaks as a terrorist organization. While the topic of this article is not a discussion of the merits of this request, which is reported about by cnet ,
nevertheless, this request raises some interesting questions, that should be asked in a broader scope.
The article mentions that a former UCLA chancellor, Norman Abrams wrote that "the janitor or the pizza delivery person or a taxi driver, or anyone who provides the most mundane 'services,' would seem to be at risk of prosecution" if they could be said to know they're dealing with a designated terrorist group.
What does this mean if terrorist organizations use open source?
Peter King's argument to classify Wikileaks a terrorist organization is based on sections 210 and 212 of the Immigration and Nationality Act of the USA. In particular the claim is that Wikileaks "engaged in terrorist activity by committing acts that it knew, or reasonably should have known, would afford material support for the commission of terrorist activity".
According to Wikileaks'about page, the goal of wikileaks is to bring important news and information to the public. In fact it seems that all information is being brought to the public without any discrimination, and no information is reported to be selectively only provided to any terrorists or terrorist organizations.
If as the reasoning is, providing something to the public that can be used by terrorists or terrorist organisations for the commission of terrorist activities by itself an act of terrorism or support thereof, can it be then also concluded that providing software to the public at large that can be used for the commission of terrorist activities could also be defined as an act of terrorism or support thereof? Obviously terrorist can make use of software providing communication over the Internet. Encryption and steganography could be useful, but almost any software could be used from web server software to word processing.
It would also not be the first time that anti-terrorism legislation would be misused. The British Prime Minister Gordon Brown used anti-terrorism legislation to seize assets of Icelandic banks when the banking system in Iceland collapsed (so he fell short to claim Iceland was a terrorist organisation, or the US by providing derivative of sub-prime mortgages had materially supported Iceland in any "terrorist activities against the UK").
The German Pastor Martin Niemoeller said about the inactivity of intellectuals during the Nazi regime in Germany:
They came first for the Communists,
and I didn't speak up because I wasn't a Communist.
Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist.
Then they came for the Jews,
and I didn't speak up because I wasn't a Jew.
Then they came for me
and by that time no one was left to speak up.
Hence, history teaches us, it is not impossible for states to overreach their authorities and extend persecution further and further when it is deemed politically convenient or advantages. Therefore, the conclusion, that arguments used today against wikileaks could be used tomorrow against open source projects or open source contributors may not be totally far fetched, even it does not look very likely to happen in today's perspective.
If it is assumed that such a risk, however remote, is existent, what steps could or should an open source organisation or contributor take to mitigate the risk?
One possibility would be to add a clause into open source licences which would revoke such licences in the case
of the open source software being used for any criminal acts, or terrorist acts. However, this would likely be a violation of the principles of for example the Debian Free Software Guidelines which require no discrimination against any person or group or field of endeavor.
While such a clause in a licence might clarify the intention of the open source organization or contributor, such a declaration of intention should not be required by a state that is based on democratic principles. The basic
assumption in a democracy is the principle of innocence until proven guilt. Software by itself does not commit terrorist acts, nor does it support them. Organisations and contributors that provide software to the public at large cannot be held accountable for what a random person might use the software for.
In the light of Pastor Martin Niemoeller's words, it seems prerogative to stand up for those principles before they are encroached and nobody is there to speak up anymore.