Israel State Attorney says social media censorship by government is illegal

Israel State Attorney claims censorship of social media content, following Cyber Unit requests, isn’t an ‘exercise of gov’t authority.’ Adalah & ACRI petition Supreme Court arguing that the Internet Referral Unit cannot submit “voluntary” requests in order to bypass the law.

Following two years of complaints by Adalah that the Israeli Cyber Unit – an internet referral unit operating by the Israeli prosecution since 2015 – was unlawfully issuing requests to social media providers to censor content on their websites, the State Attorney’s office responded on 21 November 2019 that these requests “do not constitute an exercise of governmental authority.” According to the office, the unit only makes “voluntary” requests to censor content while the decisions are ultimately made by the social media providers.

The mechanism for issuing these requests, referred to by the State Attorney’s office as “Alternative Enforcement on a Voluntary Track” (henceforth “Alternative Enforcement”), includes appeals to content intermediaries like Facebook and Google to remove, restrict or suspend access to certain content, pages or users. These requests are based on an alleged violation of domestic laws as well as the intermediaries’ own Terms of Service (ToS).

This form of censorship is conducted without any legal procedure and without granting targeted users the right to be heard in the decision, and is sometimes implemented without the users’ knowledge. Adalah and ACRI argued that the prosecution’s cyber unit cannot submit “voluntary” requests to bypass constitutional and administrative norms, including transparency and due process.

CLICK HERE to read the latest Adalah letter to the State Attorney, 21 November 2019 (in Hebrew) CLICK HERE to read the State Attorney’s response, 21 November 2019 (in Hebrew)

In light of the State Attorney’s response, Adalah and the Association for Civil Rights in Israel (ACRI) filed a petition on 26 November 2019 to the Israeli Supreme Court demanding that it order the Cyber Unit to end its practices. Adalah Attorneys Fady Khoury and Rabea Eghbariah argued in the petition that the “Alternative Enforcement” mechanism violates the constitutional rights to freedom of expression and due process, that it lacks legal authority, and that it cannot stand constitutional scrutiny under Israel’s Basic Laws.

CLICK HERE to read Adalah and ACRI’s petition (in Hebrew) A meteoric rise in requests to remove content

The petition emphasized that there has been a vast increase in the use of the Alternative Enforcement mechanism since the Cyber Unit was established in 2015. According to a 2018 report by the State Attorney’s office, the number of requests made by the unit to remove content leaped from 2,241 in 2016, to 12,351 in 2017, to 14,283 in 2018 – an increase of over 600%. This number does not reflect the actual number of targeted content, as each appeal, most of which were addressed to Facebook (87%), may include tens or even hundreds of targeted posts.

The overwhelming majority of requests for content removal were accepted by the social media providers. In the past two years, according to the State Attorney’s report, about 90% of the targeted content were completely or partially removed, most of them on grounds of “identifying with a terrorist organization” (73%) or “incitement offenses” (26%). Only a fraction of the requests (1%) involved incitement to racism, privacy violations, the Video Act (relating to the Prevention of Sexual Harassment Law), copyright infringement, advertising prostitution services, and others.

Censorship in the dark

Aside from the data in the State Attorney’s report, there is no other available information on the nature of the content requested for removal by the Cyber Unit. The State Attorney’s office rejected Adalah’s appeals to disclose the content that was removed at the Cyber Unit’s request, and it is apparent from the replies that the office does not keep a record of this content.

Similarly, following a Freedom of Information request submitted by a number of organizations including ACRI, the Israeli Ministry of Justice refused to disclose the content that was removed, claiming that “exposing the content of posts related to incitement to violence and terrorism may harm various security interests.”

Therefore, removing content through the “Alternative Enforcement” mechanism is carried out with no transparency or legal procedure whatsoever, and with no framework for users to defend themselves against allegations that their posts were illegal or warranted removal.

In light of these facts, Adalah and ACRI asked the Supreme Court to issue an interim order requiring the State Attorney’s office to justify the Cyber Unit’s practice (order nisi), and after hearing its position, to issue an order prohibiting the practice.

Adalah Attorney Rabea Eghbariah commented:

“The mere idea that the state is operating a unit which examines and flags content for ‘voluntary’ removal according to the companies’ own Terms of Service is absurd. The Ministry of Justice is suddenly transformed into the “Ministry of Truth,” constitutional norms replaced with “Terms of Service “, and the courts with corporate clerks. All this is practiced without any legal authority or legal processes whatsoever, in the total absence of transparency, and while exploiting the state’s bargaining power as a potential regulator of these companies. This policy contravenes the principles of the rule of law in an unprecedented manner under the guise of “combating incitement and terrorism,” and violates freedom of political expression. Moreover, there is a reason to suspect that the victims of these violations are first and foremost Palestinian.”.

Case Citation: HCJ 7846/19 Adalah The Legal Center for Arab Minority Riights in Israel v. The State Attorney – Cyber Unit Related Press Releases:Social media giants continue to collaborate with Israel’s illegal ‘Cyber Unit’, 19 December 2018Israel’s Cyber Unit operating illegally to censor social media content, 14 September 2017

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