Beating ISIS: Should We Collect Metadata or Trash the First Amendment?

Given that President Obama has called ISIS (aka Islamic State and ISIL) “a bunch of killers with good social media,” it is not surprising that Donald Trump has said we should talk to “Bill Gates and a lot of different people” to figure out how we can go about “maybe in certain areas closing that Internet up in some ways.”  Mr. Trump was dismissive of possible First Amendment concerns:  “Somebody will say, ‘Oh freedom of speech, freedom of speech.’  These are foolish people.”

But it’s not just Donald Trump who is saying these things.  Here’s Hillary Clinton:

“Resolve means depriving jihadists of virtual territory just as we work to deprive them of actual territory. … They are using websites, social media, chat rooms and other platforms to celebrate beheadings, recruit future terrorists, and call for attacks.  We should work with host companies to shut them down ….  You’re going to hear all of the usual complaints, you know, freedom of speech, et cetera.  But if we truly are in a war against terrorism and we are truly looking for ways to shut off their funding, shut off the flow of foreign fighters, then we’ve got to shut off their means of communicating.”

And then there is Professor Eric Posner of the University of Chicago Law School, who suggests making it illegal for Americans to even look at an ISIS website:

“Consider a law that makes it a crime to access websites that glorify, express support for, or provide encouragement for ISIS or support recruitment by ISIS; to distribute links to those websites or videos, images, or text taken from those websites; or to encourage people to access such websites by supplying them with links or instructions. … The idea would be to get out the word that looking at ISIS-related websites, like looking at websites that display child pornography, is strictly forbidden.”

The “thump, thump, thump” you are hearing are Mr. Trump, Mrs. Clinton, and Professor Posner Clinton collectively throwing the First Amendment under the ISIS bus.

Let me suggest an alternative.  Reinstate the program under which the NSA collected metadata from phone calls and other electronic communications.  I don’t like government snoops.  But as the program was set up, only a limited number of people at the NSA could look at the information, and there was some degree of court review.  In fact, in 2013, a federal district court judge in New York upheld the program, saying it didn’t violate the Fourth Amendment.¹

The metadata program wasn’t great, but given the alternative between wholesale violations of our First Amendment freedoms and the limited intrusions on our privacy under the metadata collection program, I would go with the latter over the former.
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¹ On the other hand, a district court judge in the District of Columbia said the programs did violate the Fourth Amendment.

UPDATE (3/4/16 8:50 am): I corrected a typo in the fourth paragraph.  The correction is marked.