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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.

Location: 

Comments

They could also go after hardware stores, who sell, e.g., screwdrivers, which can be (and most surely have been) used in terrorists plots.

The point is somewhat more that previously in history a concept of divide and conquer has been used. If they would go after hardware stores for selling screw drivers, the majority of population would disagree and possibly rebel. If they go after things which most people think they are not involved with, they might not speak up because they deem the risks of speaking up to high for their benefits, however, when someone goes after them, there is nobody there anymore to speak up.

With regard to the following:

The British Prime Minister Gordon Prime used anti-terrorism legislation to seize assets of Icelandic banks when the banking system in Iceland collapsed

That isn't accurate. The bill that granted the UK power to act did indeed inclde the term terrorism (It was the Anti-terrorism, Crime and Security Act 2001), however the power used was to curb "[A]ction to the detriment of the United Kingdom's economy... has been or is likely to be taken by a person or persons.". It isn't a counter-terrorism measure, but rather an economic security measure. That is actually quite important, in short it was a part of the intended use of the act, not a misuse of anti-terrorism legislation.

Of course it was interpreted by some (notably iceland...) as being a counter terrorism measure being used against a friendly country, but again, that doesn't mean it was.

A closer approximation of the issues you are talking about from a UK legal perspective would be the use of Section 58 of the Terrorism Act 2000 against Samina Malik (the 'Lyrical Terrorist'). Section 58 made it an offence to collect or possesses "information of a kind likely to be useful to a person committing or preparing an act of terrorism", something rather closer to the US legislation (and at first glance would make literally anything illegal...).

It should be noted her however that on appeal Lord Phillips concluded that an offence would be committed only if a document was of a kind likely to provide 'practical' assistance to a person committing or preparing a specific act of terrorism. So having a copy a map of Birmingham, or a screwdriver, in the absence of anything else would not be an offence... Essentially the appeal gutted the act to a large degree, preventing it from being used as a catch all for those who were not planning acts of terrorism..

The problem is that while you can make a technical argument like this, this is not how it is seen by the majority of the media. All articles I read at the time equated the seizure to anti-terrorism legislation (it is the name of the act in the end). It wasn't only the Icelandic press, but generally all European press, as well as world-wide, and in particular the UK press.

In any case, your explanations also make the point that if you follow your argument, that in fact anti-terrorism legislation is often used to push through other unrelated legislation in order to have less scrutiny or make it easier to find votes because people might not want to vote against anti-terror legislation.

In either case, at least the appearance of the actions of a government doing such a thing might be problematic, or if you follow history it can be the entry to more sinister action.

The issue is that it is important to reflect on these things and allow a robust discussion in order not to follow a path that we have learned from history might lead to bad results. Such things rarely start out totally evil but often out of being misguided,

Being an animal rights activist I can say that being labeled as a terrorist organization by the government is a whole lot of nothing. Non-violent activists currently top out the FBI's list of biggest threats thanks to the greenscare.

> "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."

JSMin was proposed for inclusion in the Fedora repositories. It was refused for the same reason you mention: it's a usage restriction:
https://bugzilla.redhat.com/show_bug.cgi?id=455507#c4

I'm pretty sure there are other examples both in Fedora and other distributions (Debian seems likely to take the same kind of decision).

For what it's worth: Julian Assange uses a computer sold by a fruit company in Cupertino. So, the "open source" world is safe.

While Julian Assange may or may not use Open Source software, others who might be declared terrorists might use open source software. Therefore, the issue does not stand or fall with one individual.

While the scenario you suggest isn't impossible, we have been "guilty" of assisting terrorists ever since the first terrorist started browsing the web. Remember, every time you hit a website, chances are 9/10 it's running the LAMP stack.
Could they use that as an excuse to shut us down? Hell yeah, but they can come up with any excuse and there wouldn't be much we could do about it other than to go underground.
That's why I wouldn't lose any sleep over avoiding giving excuses to the commercial establishments and the governments. They can always come up with something when they need it. Remember our street racing legislation: A drunk driver ran a red and got hit by some teens who were speeding but not unreasonably so by our standards, so everybody in his car got killed. That story got sold as "Street racers killed a family" so they panicked the mob into supporting a law that turned the police into judge/jury/executioner at roadside, as if we didn't already have pretty stiff laws against street-racing whose only "fault" was that they followed due process.
The point I'm trying to make is that when they need an excuse, they'll come up with something. Our only defense is to become indispensable to both governments and large commercial establishments, so their IT infrastructure can't survive without community support.

Sure, unaccountable governments can always do what they want. That's why democracies should have sufficient checks and balances. Unfortunately, in the Western world we sometimes forget that freedom does not come for free. We have been too far removed from real oppression which prevents us to see when things are shifting slowly in the wrong direction, It is like the frog that will not jump out of the boiling water if it just has been heated slowly enough.

One of the reasons, that the governments in the Western world are so hesitant to support the democracy movements in the Arab world is the fact, that we could start remembering the power we have as people to start holding our governments accountable.

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