I enjoyed reading Shaheed Fatima’s excellent post from last week about the British Library’s decision not to accept the digital archive of materials collected by the Taliban Sources Project (TSP). As I follow up to that piece, I’d like to attempt (probably forlornly) to give assurance to the British Library that the chances of prosecution under UK terrorism legislation for accepting the deposit of the TSP materials are negligible. Of course, that assurance depends on what is contained in the TSP and how it is then disseminated by the British Library. But on the assumption that, as indicated by the TSP, there are “no recipes for making bombs or anything like that” contained in it and that “most of [the collection is] pretty innocuous,” one is hard-pressed to understand how the materials fall within the UK terrorism legislation in the first place.
Admittedly, the UK has a relatively wide definition of terrorism (found in section 1 of the Terrorism Act 2000), but it should also be noted that the Afghan Taliban is not, and never has been, a proscribed organization under Part II of the Terrorism Act 2000, though the organization and members are subject to UN financial sanctions which are backed by UK laws. It is true that the Haqqani Network is proscribed, as well as Tehrik e Taliban Pakistan (see this link for a full current list), but the UK government has always decided to tackle the Afghan Taliban primarily under the laws of armed conflict rather than domestic terrorism criminal law.
It follows that the mere holding of materials is most unlikely to involve any offense on the part of the British Library, especially as the Terrorism Act 2000, in section 58, provides a defense of reasonable excuse for holding terrorism related materials, such as might be held for genuine scholarly purposes. As a result, it is true that there have been some prosecutions of student researchers under section 58 (these are detailed in chapter six of my book, The Anti-Terrorism Legislation). But after some early overreach in cases such as Rizwaan Sabir, the House of Lords in R v. G ( UKHL 13, para. 43) applied the requirement that “the information must, of its very nature, be designed to provide practical assistance.” There is no indication that the researchers on the TSP have themselves felt inhibited or have received any warnings from the police. Equally, under the Terrorism Act 2006, sections 1 and 2, it is hard to imagine that the British Library harbors the necessary mens rea, especially in regard to emulation (see further R v. Faraz, 2011 – unreported at first instance but discussed in my book and confirmed on appeal at R v Ahmed Faraz  EWCA Crim 2820).
The remaining danger of criminalization arises from the British Library aiding and abetting users with terrorism intentions of their own. As a result, the British Library might have to assume some controls over access. This responsibility is referred to in its press release. It seems to me that the costs of responsibility are at the heart of the argument. Two observations arise on this score.
The first is that supervision of access is only needed if materials are really within the scope of the Terrorism Act 2000, section 1. Materials relating to the Taliban are not per se categorized as relating to terrorism, as discussed above. So, it would appear that the British Library rejected the factual opinion of the researchers about the content of the TSP. It is therefore vital to know more about the precise reasons behind the Library’s decision. If they relate to specific identifiable documents (as one would hope would underlie the rejection of a rational and august public body such as the British Library), then perhaps those specific sources could be held on “special reserve.” If the stance of the British Library is based on a general principle of risk aversion, concerned above all about financial costs of supervision and also what the popular press might say about the expenditure of resources on treating the Taliban as a scholarly source, then we should indeed condemn the timorous souls of the British Library. But the blame would then reside with their corporate culture rather than any direct threat from UK terrorism legislation that is being used as an easy excuse and cover.
The second observation is to wonder whether the TSP researchers might also show the courage of their convictions. If the TSP is really not terrorism-related, what is to stop them setting up their own web page (or using some existing site) and making their archive available to the world? No doubt, the precedent of Boston College’s Irish archive might give some pause for thought. But if their claims about the nature of the materials are true, what could possibly go wrong? Others have gone down this road, notably the Jihadology website, which harbors materials (or links to them) which are considered by many governments to be of the most pernicious nature. Why in a late modern world does public access have to be arranged through the British Library, especially if it reveals itself to be more at ease with exhibitions of historical manuscripts than explanations of contemporary conflicts?