Material support laws are the black box of domestic terrorism prosecutions, a shape-shifting space into which all sorts of constitutionally protected activities can be thrown and classified as suspect, if not criminal. Their vagueness is key. They criminalize guilt by association and often use political and religious beliefs to demonstrate intent and state of mind. – Jeanne Theoharis (www.progressive.org)

We’ve raised concerns about the material support of terrorism statute for years — it’s so malleable there seem to be no limits to what individual or activity it can be used against. It’s been called the “new hooliganism,” after the notoriously vague Soviet-era criminal law that enabled the imprisonment of any opponent of dictator Josef Stalin’s regime. Material support was first outlawed by the Clinton-era Antiterrorism and Effective Death Penalty Act of 1996, but has been amended, clarified and expanded several times since, including in the USA Patriot Act. Until now, our main concerns have been the way material support laws provide a useful tool for the government to go after activists protesting U.S. foreign policy and how they hinder U.S. charities from engaging in peacebuilding or providing humanitarian relief in war-torn areas of the world.

But recently, Congress, the administration, and pundits have not been shy about threatening to use material support against social media companies like twitter, and, in a post yesterday on Lawfare, Benjamin Wittes and Zoe Bedell take a deep dive into a hypothetical terrorist with a hypothetical encrypted iPhone to see how easily Apple could be ensnared by the material support statute. The post raised an outcry among our allies, and an article slamming it in The Intercept. But all that anger is misdirected. The real villain here is the material support statute. Because the law is so vague and has been interpreted so broadly by the courts, upholding “liability for charities supporting Hamas, even when the charities were only providing humanitarian assistance,” Wittes and Bedell reason, it’s not a great leap to see how a judge would find Apple equally guilty.  Apple would violate the law, the two write, if it continued to provide its encrypted services to a customer after the FBI has served a warrant for the customers’ communications.

Continuing to provide encryption services to a user whom the FBI has specifically warned you is engaged in criminal activity or is operating as an agent of a foreign power comes uncomfortably close to meeting the terms of the statute—particularly if the FBI has made clear that the investigation involves a suspected terrorist plot.

That hypothetical is highly specific and involves a warning from the FBI. Wittes and Bedell argue that “the sale of an encrypted phone by a major company to the general public cannot plausibly constitute material support for terrorism.” We’re not so sure.  “Wittes and Bedell write as if the HLP ruling doesn’t exist,” Suraj Sazawal, who has written extensively on the topic, notes. “ Any service can be construed as material support, especially tangible ones.” The Supreme Court decided HLP, or Holder v. Humanitarian Law Project, in 2010, ruling that human rights advocacy and peacebuilding or provision of any ‘service’ to a terror group can be prosecuted under the law. Emily Goldberg Knox remarks on the Slippery Slope of Material Support Prosecutions:

in HLP, the Supreme Court found that advocacy was a prohibited “service” under the statute. Then-Solicitor General Elena Kagan’s statement as to the government’s view of the term’s breadth supports a broad interpretation of the term. At oral argument, Kagan asserted that a true service is “something that will help the foreign organization in whatever it does.” From all of this, it becomes clear that §2339B and the definition of material support or resources covers abroad range of activities.

In the civil society and charity arena, we’ve seen how material support of terrorism statutes inhibit aid to the general population if it’s possible that a terror organization might derive some benefit. Writing for the Charity and Security Network (DDF is a member), Nathaniel Turner explains:

The U.S. has long held that any benefit, no matter how tangential, and regardless of intent, to a terrorist group is too much. Humanitarian aid and peacebuilding groups have long felt this sting. Criminal law and economic sanctions law also prohibit material support to any designated terrorist, and have no exemption for aid or conflict mediation programs. During the famine in Somalia in 2011, aid groups had to pull out of areas controlled by a terrorist group, rather than pay small tolls to them to be able to enter areas with starving civilians.

And had to worry that building a well in a drought-stricken village in Somalia could put them on the wrong side of the law. Because they couldn’t guarantee that an al-Shabaab terrorist wasn’t going to happen upon the well and take a drink. So ensnaring Apple in the material support net doesn’t seem so far-fetched after all. And not because the company is doing anything wrong.