The USA Freedom Act includes a controversial provision that nobody is talking about

The USA Freedom Act makes it slightly more difficult for the NSA to spy on people, and Americans are so excited about getting a little bit of their freedom back that they're missing what's in the rest of the law.

Take a look at this section from Title VII, "Enhanced National Security Provisions."

SEC. 704. INCREASE IN PENALTIES FOR MATERIAL SUPPORT OF FOREIGN TERRORIST ORGANIZATIONS.

Section 2339B(a)(1) of title 18, United States Code, is amended by striking “15 years” and inserting “20 years”.

At first glance, there doesn't seem to be anything wrong here. The Freedom Act makes it harder for the NSA to spy on good guys — you know, us — and makes it easier to put terrorists in jail. What's there to argue with?

Here's the thing: The post 9/11 investigation and prosecution of American citizens for providing "material support" to terrorist organizations has been massively controversial — plagued by abuse, entrapment, overzealous prosecution, and overly broad interpretation of the law, according to critics. The Patriot Act created the problem, and the Freedom Act just doubled down on it. 

Defining "material support"

The first part of the problem is how "material support" has been defined under the law. Providing "material support" for foreign terrorist organizations has only been illegal since 1994, when the Violent Crime Control and Law Enforcement Act, a response to the World Trade Center bombing in 1993, made it illegal to provide a known terrorist group with “currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation and other physical assets.” (The ban was further defined under the Antiterrorism and Effective Death Penalty Act of 1996.)

Categories like "training" and personnel" were somewhat vague, but not nearly as vague as the language the USA Patriot Act added in 2001. The Patriot Act criminalized those things as well as "expert advice or assistance" — two categories so broad that they can mean almost anything. The Intelligence Reform and Terrorism Prevention Act of 2004 narrowed the definition so that you could only be convicted if you knew you were materially supporting a foreign terrorist organization. (That the clarification was needed in the first place is pretty astonishing.)

Prosecutions

The second problem is how law enforcement has interpreted "material support" for the purposes of investigating and prosecuting alleged offenders. The US Justice Department and Federal Bureau of Investigation isn't just dealing with bad guys who funnel money and arms to Al Qaeda and the Islamic State or allow terrorists safe haven in their apartments. Things aren't that simple, and when given a choice about whether one thing or another counts as "material support," US law enforcement has given itself wide latitude. 

Just how wide? A July 2014 report by Human Rights Watch (HRW) detailed some very troubling cases. In April 2012, a man was convicted of "material support" for translating and posting online texts the government claimed promoted "jihad." In another case, the US convicted a man named Fahad Hashmi for "material support" based on claims that he was a "quartermaster" who'd giving safe haven for an Al Qaeda terrorist and provided military equipment to the group. What actually happened was a friend of his stayed at his home for two weeks before a trip to Pakistan. The friend was traveling to an Al Qaeda training camp in Pakistan, but the government presented no evidence the defendant knew that. The "military equipment" was the friend's luggage, which had ponchos and socks, and other "material assistance" included Hashmi letting his friend use his cell phone.

Free speech

People going to jail for holding a friend's socks is worrying enough, but there are also free speech implications to consider.

"Our research suggests that the breadth of the material support laws," HRW said in its report, "has led federal prosecutors to levy criminal charges for religious or political conduct itself, or as the primary evidence of criminal activity."

The New York Times warned about the threat of "material support" prosecutions in a 2010 editorial blasting the US Supreme Court's decision in Holder v. Humanitarian Law Project, which found that an advocacy group was providing "material support" by advising two foreign terrorist groups, the Liberation Tigers of Tamil Eelam and the Kurdistan Workers’ Party, on how to take steps toward peace.

If that was "material support," what's next?

"Academic researchers doing field work in conflict zones could be arrested for meeting with terror groups and discussing their research," the Times warned, "as could journalists who write about the activities and motivations of these groups, or the journalists’ sources."

The Times had some first-hand experience with this: "The FBI has questioned people it suspected as being sources for a New York Times article about terrorism, and threatened to arrest them for providing material support."

It's been five years since the Times sounded that alarm. Today, defining when speech turns into "material support" is more important than ever, considering the Islamic State's global appeal and social media presence.

In February 2015, a Justice Department official said "proliferating" pro-Islamic State content on Twitter and Facebook could be a crime under the "material support" ban. He didn't expand on what counted as "proliferating."

That means it's a little harder for the NSA to spy on you. But it also means you could go to jail for longer if you tweet the wrong thing.