Will Israeli Internet Censorship Law Prevent the Next Terror Attack?

Cabinet committee approves a measure that would empower courts to block ‘inciteful’ content. Experts say the law manages to do too little and too much at the same time.

Justice Minister Ayelet Shaked and Public Security Minister Gilad Erdan at the Knesset.
Olivier Fitoussi

Israel is moving to arm itself with a more powerful weapon as it does battle with Facebook and other internet giants over the issue of taking down objectionable content after the government backed a bill on Sunday that would empower courts to block content that incites violence.

More and more, violence doesn’t arise from organized groups urging on their members, but from so-called lone wolves inspired by what they see online. As a result, the power of Facebook postings and other content to inspire terror and other attacks has become a major concern of policy makers in Israel and elsewhere in the world. Pointing to the wave of terrorist activity that began in the fall of 2015, including knifing attacks by lone-wolf terrorists, Justice Minister Ayelet Shaked has said that existing legislation doesn’t give law enforcement officials sufficient authority to demand that companies such as Google or Facebook remove content deemed inciteful.

Sponsored by Shaked and Public Security Minister Gilad Erdan, the so-called Facebook law would give the district courts the power to order internet companies like Facebook, Twitter and Google to remove content deemed as incitement and presenting a concrete threat to the safety of an individual, the public at large or to national security. The law was approved by the Ministerial Legislation Committee and still requires Knesset approval before becoming law, but because the govenrment is behind it, it is virtually assured that the bill will be passed in some form or another by the Knesset, though it could be amended in the process.

In its current form, the bill would allow the courts to issue an order to remove content against the individual posting content, the owner and/ or operator of the web platform or the operator of the server on which the content is stored. The bill would also permit the court to issue orders against search engines such as Google, which would be held responsible for removing the sites from search results.

No monitoring requirement

The measure would not require social media companies like Facebook to monitor content that might incite violence but they would have to remove any content that the government deems as incitement. The request would have to be issued by a state or police prosecutor, and approved by the attorney general.

But experts in the field say the proposed legislation simultaneously goes too far in censoring content awhile doing too little to prevent it from being widely disseminated.

“The problem with the law is that it is designed to block the Israeli public from viewing content but does not to prevent people from posting things that could harm the security of the country. This is a law that will let the police obtain an order blocking access to a specific website without bringing the person who posted it to justice,” says Jonathan Klinger, a lawyer specializing in information law and legal adviser to the Digital Rights Movement organization.

He cites as an example, someone like Richard Silverstein, an American blogger and critic of Israeli policy, who publishes information that is subject to Israeli military censorship: The proposed legislation would require Facebook or Twitter to block access to Silverstein’s blog inside Israel.

But, Klinger adds, the law would not be able to stop Israelis from seeing the content. “Any Israeli with a VPN [virtual private network] or proxy can bypass the block and see what he is writing,” he notes.

On Sunday, the Israel Internet Association issued a statement shortly after the cabinet approval that called the Facebook law an ineffective tool to combat incitement.

“On the one hand, it will block posts deemed inciteful only to users in Israel while the rest of the world will be able to continue to see them,” the association said. “At the same time the law in its current form would allow legitimate posts to be removed and to restrict expression because it includes vague and ambiguous terms like ‘a danger to public security’ or ‘endangering state security’ that can be broadly interpreted especially when they are presented to the court ex parte.”

In fact, the proposed legislation does try to address concerns about freedom of expression by setting two conditions for blocking social media posts - one is that post constitutes a criminal offense and the other is that posting the material would constitute a concrete danger to the safety of an individual, the public or to state security. But its backers make security concerns paramount.

“This butterfly effect, in which someone typing in one location creates a real storm that even brings about an act of murder somewhere else without any possible enforcement or control is unreasonable and has to be addressed,” Shaked said in a statement justifying the proposed law. Erdan said: “Even though incitement leads to terrorism, Facebook and internet companies are not responding to all of the police requests to remove provocative content and sometimes a long time elapses before the inciteful content is removed. The new law is therefore necessary to give us the tools to act immediately to remove content that could spawn acts of terrorism and murder.”

Erdan has accused Facebook and Mark Zuckerberg, its CEO, of being responsible for terrorist attacks in Israel in the last year and the government has stepped up efforts to force the company to act.

“It has become a monster. Some of the blood of the murder victims is on Facebook’s hands,” Erdan said several months ago in an interview on the Israeli television program “Meet the Press” on Channel 2.

“All of the discussions of the younger generation in the [Palestinian] Authority, all the incitement and lies, everything is happening on that platform. I support Mr. Zuckerberg’s efforts to self-monitor. Facebook is interfering and not cooperating with the Israel Police and is imposing a high threshold for removing inciteful content. Mr. Zuckerberg, the blood of the murder victims is on your hands. Israeli citizens need to demand monitoring of the platform that he established and from which he earns billions.”

Posts deleted quadruples

In the first half of this year, the number of items Facebook took down due to appeals by the Israeli government and private sector groups more than quadrupled, the company said last week. Facebook agreed to “restrict access” to 962 content items on its network, compared with 236 in the second half of 2015. The company said that some of the content it removed was at the behest of non-profit organizations, charities and private citizens calling its attention to content of this nature and not just from the government.Requests from Israel account for about 10% of the world total of 9,663 – a steep drop from 83% last year, due largely to the sharp rise of requests in France in 2015 for the removal of a picture from the November terror attacks in Paris.

In the past month, Facebook has been accused of inaction when it comes to inciteful internet content. A European Union report published at the beginning of the month and prepared at the request of its justice and consumer commissioner, Vera Jourova, accuses major companies such as Microsoft, Facebook, YouTube and Twitter of not keeping their promises to the EU about combatting internet-based incitement.

The companies released a code of conduct in May in conjunction with the EU promising to fight the dissemination of inciteful content. But the report alleges it takes the companies considerable tie to respond, despite their commitment to respond swiftly. It said that only 40% of cases of alleged inciteful material are examined within 24 hours, though 80% of complaints are handled within 48 hours.

Critics have slammed the initiative as an Orwellian assault on freedom of expression. The definitions of incitement to violence and expressions of hate were vague, critics said.

The same companies face allegations in the United States of permitting the posting of hateful content that has spawned murder and terrorism such as the mass killing of more than 50 young people mostly of the LGBT community at the Pulse nightclub in Orlando. A lawsuit filed by victims’ families accuses Twitter, Facebook and Google of providing fertile ground for Islamic State, or ISIS to disseminate hatred and recruit adherents. The suit accuses social media companies of failing to block Web pages and users who have been identified as affiliated with such hate groups.

A $1 billion lawsuit by U.S. citizens representing victims of terrorist attacks in Israel and the West Bank, accuses Facebook of allowing Hamas to use its network as a venue for plotting attacks.

There is no legislation in the United States to ban inciteful content. Section 230 of the Federal Communications Decency Act gives high-tech companies immunity from civil suits when it comes to content deemed inappropriate, but leaves them subject to Federal criminal prosecution. The immunity provision applies to all such content sites, in the interest of freedom of expression.

Commenting on the pending Israeli legislation, Guy Ophir, a lawyer specializing in internet law, says: “What the law sets out to accomplish, and with justification, is to place the responsibility in the hands of content sites, and I think Facebook and Google need to take responsibility for what is happening on their platforms.”

“It’s like a girl going to a bar and being sexually harassed by a man. The owner of the place also has responsibility. I think this law is realistic and that the danger of silencing people is low,” Ophir says.

Ophir accuses Facebook and Google of acting improperly and for failing to permit users to contact them about internet-based bullying and sexual harassment. ”In the absence of legislation, Google and Facebook are running wild here. Facebook has conducted itself like a criminal organization that evades contact and that in the absence of domestic regulation, they have done whatever they have felt like,” Ophir says.

Over the weekend, Turkey blocked access to Facebook following ISIS’ murder of two soldiers. Russia also takes similar steps on occasion, but there is no such precedent in the Western democratic world.