Yesterday's Supreme Court of the United States (SCOTUS) judgment has delivered a significant need to enhance threat assessment methods. The SCOTUS ruling in Counterman v. Colorado has now introduced a new standard for defining "true threats", focusing on the mindset of the person issuing the threat rather than how a reasonable person would regard a particular statement as a threat of violence. This change from an objective to a recklessness standard alters how threat assessment professionals must operate, particularly highlighting the growing importance of open source intelligence (OSINT) and the need for careful data assessment.
In this case, the SCOTUS held that the First Amendment requires a standard of recklessness in prosecutions for threats. This ruling demonstrates a significant shift from the previously used objective standard, which only required that a reasonable person would perceive a statement as a threat. The recklessness standard necessitates demonstrating that the individual knew their statement could be interpreted as a threat, thus consciously disregarding the potential harm it could cause.
Implications of the SCOTUS Ruling
This shift in the legal standard has implications for security and and risk management. Threat assessment professionals, prosecutors, and law enforcement officers must now demonstrate the mental state of the person issuing the threat and the threat's content.
You must establish that the person acted recklessly, knowing that their statements could be perceived as threats, but chose to make them anyway.
Moreover, this ruling places an onus on threat assessment professionals to gather more comprehensive and nuanced evidence. This requirement includes not only the content of the threat but also an in-depth analysis of the individual's intent, behavior patterns, and mindset, adding complexity to the threat assessment process.
The Growing Importance of OSINT
The ruling's implications place OSINT – the process of collecting information from publicly available sources – at the heart of threat assessment. OSINT can help provide critical insights into the mindset and intent of the person issuing the threat, adding depth to the objective threat content analysis.
In operating under this new standard, OSINT can be crucial to understanding the wider context of the threat. You must include evidence from tracking the individual's previous behavior, social media interactions, and other potential triggers. It becomes a crucial tool to paint a comprehensive picture of the individual's mindset when the subject issues the threat.
The Need for Meticulous Threat Assessment
Beyond the expanded role of OSINT, the SCOTUS ruling also underscores the importance of a thorough threat assessment. This requirement demands careful parsing through collected data to identify clear indicators of recklessness.
The shift towards a subjective recklessness standard necessitates a detailed examination of the information, including subtleties in communication patterns, behavioral changes, and potential escalation cues. This rigorous analysis could provide substantial evidence to establish the individual's mindset when issuing the threat, proving recklessness. You will have to consider the following:
Consistent Pattern of Threats: A person making multiple threats over a period of time could indicate recklessness. It suggests malicious intent and a consistent disregard for the potential impact of their words and actions.
Ignoring Warnings: If an individual has received warnings about their behavior, either from friends, family, colleagues, or even law enforcement, but continues to make threatening statements, it can be a clear indicator of recklessness.
Publicly Shared Threats: A person aware of the physical outcome of acting on their words but choosing to make them publicly on social media may be acting recklessly.
Lack of Mitigating Circumstances: If no apparent mitigating factors can explain a person's threatening behavior -- such as mental illness or extreme emotional distress -- an interpretation of recklessness is supported.
Evidence of Deliberate Intent: Evidence that the individual knew their statements would be interpreted as threatening but made them anyway can indicate recklessness.
Reaction to Real-World Consequences: If an individual consciously continues threatening behavior despite disregarding real-world consequences (like losing their job or damaging their relationships), it could indicate recklessness.
The Reshaped Reality of Threat Assessment for Security and Risk Professionals
The Counterman v. Colorado ruling reshapes the responsibilities of threat assessment professionals. It expands the scope of work, necessitates enhanced skill sets, calls for an in-depth understanding of the legal implications, and demands an upgrade in training practices. Further, evidence will need to be collected over time to demonstrate a standard of recklessness, necessitating a purpose-built platform for accumulating, organizing and presenting relevant data. Security and risk professionals will now need to go beyond the threat's nature and content and assess the individual's mindset when the threat is issued. We recommend you use the full array of evidence collection, tagging, and workflow options within DigitalStakeout Scout to fuse and annotate your data with as much detail as possible to build an accurate view of the threat. Our blog post on threat leakage is a guide that will help you spot specific elements that convey the emergence of a threat.