Online Terrorism Reporting Act Revived In Light Of San Bernardino Shootings

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Within hours after a pair of shooters killed fourteen people in San Bernardino, California, reports emerged that one of the perpetrators had sworn allegiance to ISIS immediately before the attack. In the week following, Senators Dianne Feinstein (D-CA) and Richard Burr (R-NC) reintroduced a bill intended to target similar acts of terrorism by requiring electronic services providers to report known terrorist activity. The bill has encountered opposition.

Senator Feinstein’s bill, titled the “Requiring Reporting of Online Terrorist Activity Act” (the “Act”), would apply to providers of “electronic communication services” or “remote computing services,” as defined in the Stored Communications Act (18 U.S.C. §§ 2510, 2711). Under the proposed Cybersecurity Information Sharing Act of 2015 (“CISA”), passed by the Senate on October 27, 2015, these service providers would be immunized from private suit based on their monitoring of their users’ communications and reporting to the Department of Homeland Security. The Act, however, would go further and impose an affirmative obligation on service providers to report “actual knowledge of any terrorist activity,” including any facts or circumstances from which there is an apparent criminal distribution of information relating to explosives, destructive devices, and weapons of mass destruction. Act, § 2.

The Act would create a legal duty solely with respect to providers’ actual knowledge. This, according to Senator Feinstein, ensures that providers do not need to “undertake any additional action to turn up terrorist activity.” However, Senator Ron Wyden (D-OR) has objected that the Act’s actual knowledge standard would discourage providers’ existing monitoring efforts, in that the actual detection of terrorist activity could create legal liability. Indeed, Senator Wyden cited this objection when he placed a procedural hold on an earlier version of the Act in September.

Reporter, Daniel Ray, Silicon Valley, +1 650 422 6715, dray@kslaw.com.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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