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TO say that terrorism has fundamentally changed the nature of warfare and violent crime is nothing new. For over a decade, Pakistan has endured violent extremism. The perpetrators of terrorist acts have no Geneva Convention to which they adhere for fear of consequences. The modern terrorist is not the bearded, cave-dwelling boogeyman of popular culture. He, and increasingly she, is educated and tech-savvy.
There is a growing realisation that conducting military operations in remote areas is not enough. Violent extremists, regardless of their ideology or geographical location, increasingly rely on the internet and social media as part of their operations.
What impact does this have on the state’s counterterrorism (CT) efforts? In the aftermath of such an act, it means perhaps relatively little. There are well-established protocols to investigate acts of terrorism after they occur, even terrorism with a cyber component. The greater potential utility lies where a subject may be successfully profiled and investigated based on his or her digital activity, leading to the prevention of a violent act. Such operations may uncover recruiting material, content intended to incite or glorify violence or efforts to secure financing.
As theoretically beneficial as this type of CT investigation can be, existing laws may not necessarily support such invasive measures, making trolling for potential terrorists online a dubious proposition at best.
Is it advisable to pursue CT investigations from digital platforms?
Operations that base their success on the creation of a tangible connection between a person’s digital activity and a potential act of terrorism tread a slippery slope. An investigation that employs profiling and widespread surveillance has the potential to violate an individual’s right to privacy.
Privacy itself is difficult to conceive in an age where smart devices record and transmit virtually every action, location and keystroke of the user. Where the law does permit surveillance of digital activity, the assumption is that the invasion of any individual’s privacy is outweighed by the resulting prevention of some imminent harm. Much to the horror of human rights advocates, the secrecy surrounding such programmes makes it difficult to dispute the need for the government to go full Big Brother on its citizens, even if the results are limited.
Suspicions of government surveillance may also have an intense chilling effect on the right of free expression. Though not an absolute right, free expression is guaranteed under domestic and international law and the extent to which it is protected varies by country. What constitutes protected free expression and to what extent a person may be incriminated solely based on what they share online are not easy questions to answer.
These legal grey areas allow governments to justify placing limitations on free expression, particularly digital content, citing national security concerns. To capitalise on preventive CT operations, these limitations would presumably allow for the arrest of individuals on lesser or even arbitrary charges and the justification would be that the arrest prevents their participation in greater acts of terrorism. The ends in this case appear to justify the means.
What may make matters murkier is the ability to legally detain an individual even in the absence of the commission of a crime. If an individual matches a particular profile or posts controversial digital content online, domestic law may allow for their prolonged detention without criminal charges. In Pakistan, for example, detention is permitted for such grounds as acting in a manner detrimental to public safety or to the maintenance of public order.
For CT operatives, the ability to detain virtually any person on such broad grounds is a powerful tool, but the problems posed from a human rights perspective vis-à-vis the abuse of this power are obvious. Using the law to sanction a digital witch-hunt is not guaranteed to yield results simply because digital activity may not even directly identify a violent extremist. As actionable evidence, what someone posts online may just be more prejudicial than probative when assessing whether or not they pose a credible threat. Is it then worthwhile to pursue CT investigations from digital platforms based on the potential for results? Is the possible abuse of individual rights too high a cost to pay for the possibility?
This ongoing battle between concerns of national security and protection of individual human rights has no foreseeable end. Clearly, there are no simple solutions to any of these issues because terrorism is not a conventional crime. The potential for significant harm to innocent civilians propels the justification for increasingly stringent CT measures where invasion of individual rights becomes less important as the government is pressured to respond. Victory over terrorism may, however, become difficult to declare if the methods used to counter it render a state morally indistinguishable from the violent nihilists it seeks to suppress.
The writer is a lawyer and consultant on international law.
Published in Dawn, June 8th, 2017
