AuthorMoy, Katherine Kaiser

Introduction 268 I. "Inspired" Attacks in the ISIS Era 271 II. Gaps in Current Surveillance Law 273 A. Title III and Requisite Underlying "Alleged Criminal Offenses" 273 B. Pen Registers and the "Ongoing Criminal Investigations" Requirement 274 C. The Foreign Intelligence Surveillance Act and the "Agent of a Foreign Power" Standard 275 III. First Amendment Limitations on Surveilling Viewers of Terrorist Propaganda 277 A. Potential Responses to the Threat of Online Radicalization and "Inspired" Attacks 278 1. Removing the Content 278 2. Prosecuting the "Speaker" 279 3. Prosecuting the Viewer 279 4. Using the Viewing of Terrorist Material as a Basis for Further Electronic Surveillance 280 B. First Amendment Evaluation of Expanding Surveillance Authority 281 1. Measuring the Government's Interest 282 2. Accounting for Individual Freedoms 284 Conclusion 289 INTRODUCTION

On June 29, 2016, a twenty-nine-year-old security guard named Omar Mateen walked into Pulse, a gay nightclub in Orlando, Florida, and opened fire. Over the course of several hours, he killed forty-nine people and injured dozens more. (1) During a 9-1-1 call in the midst of the attack, Mateen announced his allegiance to the so-called Islamic State--also known as the Islamic State of Iraq and Syria (ISIS)--a jihadist terrorist organization. (2) At the time, the incident was the worst mass shooting in modern U.S. history. (3)

Mateen was not unknown to law enforcement. More than three years before the attack, Mateen's co-workers at the St. Lucie County Courthouse reported to authorities that he had claimed to be connected to al-Qaida and Hezbollah, and had said that he wanted to "die as a martyr." (4) Upon receiving this tip, the local sheriff's office alerted the FBI, which opened a preliminary investigation into Mateen's activities. FBI agents deployed virtually every tool legally available to verify that he posed no threat to those around him. (5) They ran Mateen's name through a "maze of federal criminal and terrorism databases" and checked his phone records for any suspicious contacts. (6) They followed him in unmarked vehicles for an unspecified amount of time. (7) They "deployed two confidential informants more than two dozen times" to record his conversations. (8) And they even interviewed him twice. (9)

But the FBI found nothing. As one investigator explained, "[w]e went right up to the edge of what we could do legally, and there was just nothing there." (10 )Mateen admitted to the FBI's informants that he had told his coworkers he was tied to terrorist organizations, but claimed he was just bluffing, trying to scare them after they teased him about his religion; his co-workers corroborated the story. (11) After ten months, the FBI concluded its investigation in mid-2014. (12)

A few months later, the FBI got another chance--they interviewed Mateen about a former member of his mosque who had carried out a suicide bombing in Syria. Based on a tip from another mosque attendee, (13) agents asked Mateen if he had watched any videos of Anwar al-Awlaki, the American al-Qaida propagandist who was killed in a U.S. drone strike in Yemen in 2011. Mateen denied watching the videos, (14) and the FBI moved on. (15)

More than two years later, in the aftermath of the attack on the Pulse nightclub, it was obvious that the FBI had missed something. Post-shooting analysis of Mateen's computer revealed that he had viewed terrorist propaganda videos online, including some depicting beheadings. He had also sought information about ISIS on the Internet. (16) Short of this fact, however, nothing the FBI could have known during its earlier investigation suggested Mateen was likely to conduct an ISIS-"inspired" attack. A review of Mateen's social media accounts revealed no direct connections to terrorist groups. (17) He had never posted statements indicating sympathy with terrorist causes before the night of the attack. And there was no evidence he had ever coordinated with the group in preparation for the attack.

Attacks carried out in the name of--but not planned by--terrorist organizations are a reality in the age of ISIS. This past October, twenty-nine-year-old Sayfullo Saipov drove a truck into a crowd in Manhattan, killing eight people. (18) Investigators discovered photos of ISIS's leader on Saipov's phone, as well as a note near the scene bearing a slogan believed to refer to the group. (19) ISIS claimed responsibility for the attack a few days later. (20) In December 2015, a married couple killed fourteen people at an office holiday party in San Bernardino, California, shortly after one of the attackers pledged allegiance to ISIS in a Facebook post. (21) Indeed, the concept of the "ISIS-inspired" attack increasingly dominates the public conception of terrorist threats. (22) As the events of September 11, 2001 become a more distant memory, and the United States and its allies continue to dismantle al-Qaida operational networks and safe-havens, these comparatively unsophisticated yet persistent attacks can chip away at our sense of security.

The Pulse attack helped reveal that law enforcement and intelligence professionals may not be properly equipped to prevent these attacks with the tools available to them under the law. Perhaps if the FBI had been able to monitor Omar Mateen's online activity to confirm that he had watched propaganda videos of beheadings and searched for information about ISIS, it may not have moved on so quickly from its investigation into his activities. Experts have likewise noted an apparent gap in the "armory" of counterterrorism investigators. (23) But lowering the barriers to law enforcement access to private information raises a host of civil liberties concerns, both for those who seek out such information for personal purposes, and those who have research interests in the subject. The vanguard of terrorist threats calls upon us to reexamine the balance our legal system strikes between civil liberties and national security.

This Note proceeds in three Parts. Part I briefly describes how ISIS is breaking the mold of global terrorist groups (and the laws designed to combat them) by "inspiring" violent attacks in the United States. Part II then examines the current tools available to law enforcement and intelligence professionals for conducting surveillance of those who are drawn toward terrorist propaganda. It concludes that the current statutory framework likely does not allow for digital surveillance of individuals solely because they observe terrorist groups' content, if they have not also established relationships with terrorist groups or operatives. Finally, Part III explores the possibility of allowing such surveillance in light of the risks it would pose to core First Amendment values. (24) While the government's interest in detecting and disrupting terrorist threats is robust, whether the government's interest or the considerable individual interests at stake are weightier may be in the eye of the beholder. (25 )In any event, this Note suggests that a regime allowing surveillance based on viewing terrorist propaganda would need to be scrupulously limited to pass First Amendment muster. Ultimately, the viability of expanded surveillance thus turns on the government's ability to take practical precautions to safeguard individuals' expressive freedoms--particularly in exploring Internet content for educational or research purposes.


    ISIS is not the first international terrorist group to challenge existing law enforcement and intelligence paradigms. Although al-Qaida and other groups had targeted U.S. interests before September 11, 2001, the coordinated attacks launched on that day brought the threat of jihadist terrorism to the forefront of the national consciousness. 9/11 prompted much of the extant legal framework for detecting and disrupting terrorist threats, including the USA PATRIOT Act. (26)

    Indeed, a devastating missed opportunity to prevent the 9/11 attacks illustrated the perceived need for lawmakers to close a gap in terrorism investigators' authority. It became clear after 9/11 that a man the FBI had detained in August 2001 had been a twentieth operative planned for involvement in the attacks. But investigators hadn't had enough evidence linking him to al-Qaida to obtain a court order to search his laptop, and were unable to obtain any information from him about possible plots. (27) In December 2004, Congress amended the Foreign Intelligence Surveillance Act (FISA) to allow for electronic surveillance of individuals who could not fairly be categorized as "members" of international terrorist groups. (28) The statute was intended to encompass "lone wolves": anyone "acting in sympathy with the aims of a terrorist group but not on its behalf" or "perhaps acting on behalf of a terrorist group but in such a way that the requisite connection still could not be demonstrated." (29) The law broadened the reach of surveillance authorities beyond those who could be shown to be bona fide "members" of a terrorist group. (30)

    ISIS is further challenging the scope of counterterrorism authorities. The group is ostensibly headquartered in Syria and Iraq, but it encompasses operational branches in several other countries. (31) ISIS also has a robust propaganda apparatus and social media presence; it is reported to have some 300 American or U.S.-based sympathizers active on social media, (32) and periodically produces an English-language magazine. (33) The group also has a habit of highlighting attacks carried out in its name, even if it had no role in planning them. (34) ISIS is thus "purposeful[ly] blurring... the line between operations that are planned and carried out by the terror group's core fighters and those carried out by its sympathizers." (35) And as the Pulse attack demonstrated, the group's activities frequently fall beyond investigators' reach. If "lone...

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