Handout

The FBI apparently can’t distinguish radical proclamations from rap lyrics.

During the trial of Boston bombing suspect Dzhokhar Tsarnaev, his defense attorney on Tuesday thoroughly dressed down the FBI agent who had been tasked by the prosecution to look at the young Chechen's social media accounts for evidence of extremist Muslim intentions. What he saw was not as it seemed.

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Such evidence would be all-important in the trial, which at base is trying to establish whether Tsarnaev carried out the deadly marathon bombings with clear, premeditated intention to murder civilians in the service of jihad, or whether he was a confused teen, in the thrall of his more radical, now-deceased older brother. In this capital trial, the conclusion drawn on this issue is a matter of life and death.

It isn’t surprising that Tsarnaev's online speech has been retroactively deciphered as marking a path to Islamist violence. But one need have no love for the suspect to appreciate the danger of a federal law enforcement agency incompetently reading extremism into tweets quoting pop songs. It bodes poorly for freedom of expression if benign social media posts, tracked as they are, can be used against individuals as evidence of violent intent. It’s not that pop lyrics can't be repurposed to express real murderous desire. But a precedent in which unremarkable cultural references are cited as evidence of terrorist machinations should make us all nervous.

In the course of cross-examining FBI agent Steven Kimball, while discussing the selection of Tsarnaev's tweets chosen by the government to show the jury, the defense revealed a series of embarrassing flubs and oversights, as The Guardian's Nick Woolf reported from the courtroom. A tweet containing the phrase in Cyrillic "I shall die young," was used by the government to prove Tsarnaev's intentions of martyrdom. The phrase was actually a lyric from a Russian pop song, which Tsarnaev had linked to on Twitter, but the agent hadn't even followed the link. Of course, the quotation could reflect radical intention, but its origin in a pop song undermines the government’s assumption that the words revealed the teen's extremist mindset.

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The defense also pointed out that other tweets highlighted by the government as signals of murderous designs were quotations from Comedy Central TV shows, popular comedy sketches and Jay Z lyrics. The FBI agent had also stated that one of Tsarnaev's Twitter background images was a photo of Mecca, when in fact it was an image of a mosque in the Chechen Republic. “Did you bother to look at a picture of Mecca?” Conrad asked. "No," responded Kimball. "At one point, Kimball misidentified a quote as having been made by the radical al -Qaida-affiliated cleric Anwar al-Awlaki. It was actually a quote from the Qu’ran," Woolf reported. (And, to be sure, an image of Mecca should not be taken to indicate terrorist designs; the mistake simply illustrates a disturbing lack of understanding on the part of the FBI.)

At best Kimball displayed a troubling level of incompetence and lack of due diligence. At worst, he and the government intentionally are presenting the potentially benign and irrelevant as evidence of malice. Again, the government's painting of Tsarnaev may well be correct. But to see Mecca where it is not, to show considerable ignorance of a youth cultural context, should make us question authorities. Little wonder the U.S. is currently struggling to get a grip on the path to radicalization of young Muslims. The prosecution's treatment of Tsarnaev's social media life reflects an unnuanced analysis of a dangerous young man.

Outside of the Boston bombing trial we have reason to be troubled by law enforcement's approach to online speech. In the wake of the shooting of two NYPD officers by a lone gunman who had posted on Instagram his plan to "put wings on pigs," a number of individuals were arrested for posting allegedly threatening anti-police sentiments online. The logic is flawed: Just because a cop killer did post anti-police messages does not mean every similar social media post should be treated as a precursor to a cop killing. Such an approach problematically criminalizes speech, which, even if ostensibly violent, should be protected.

As I noted at the time, these arrests also ignored a cultural context steeped in riotous anti-police imagery (understandably, given the proliferation of cop violence). Violent anti-cop speech should not be the preserve of musicians like John Maus and Body Count, nor, indeed an indication of intent to kills cops. It's for this same reason that we should be concerned if Tsarnaev's tweets are treated as reflective of an extreme, violent mindset. In wanting justice for the Boston bombing victims, we should not forego criticism of the government's dangerous treatment of defensible online speech as always already carrying the seeds of potential terror.