Israel’s War on Open Discourse: State Censorship Now Reaches Into International News Sources and Social Media

Second, Israel is using a vague and broad notion of “incitement” to arrest and detain individuals for things they post on Facebook and Twitter, and requiring that certain individuals gain the State’s approval before posting.  Furthermore, Israel has publicly shamed Facebook for not catching certain posts in time — in effect, Israel is asking Facebook to adopt the State’s criteria for what is to be censored.  Finally, Israel has also tried to enlist Facebook and Twitter to its cause, and recruited other countries to form a consortium of watchdogs.

The New York Times recently gave in to a request to honor an Israeli court order.  This involved the reporting on the case of an Israeli soldier who shot a 21-year-old Palestinian man in the head from point-blank range, killing him, even though he was already shot, wounded, and lay incapacitated on the ground.  As The Intercept’s Robert Mackey reported that day, “The soldier’s name was not used in the Israeli media, but his supporters online, calling him a hero, drew attention to what appears to be his Facebook profile. That account, in the name of Cpl. Elor Azaria, includes several photographs that closely match the appearance of the soldier seen in the video, as well as a recent commendation of his service from the army.”  

Yet despite this information being available in Israel and elsewhere, Israel contacted the New York Times and asked that the soldier’s name not be mentioned in their coverage.

Glenn Greenwald noted: 

In this case, there’s no valid rationale for censoring the name of the soldier. He’s a criminal defendant in a high-profile case that, at least originally, involved charges of murder. His face is in the video. His name has been spread all over the internet by his supporters heralding him as a hero. His name has also been reported by media outlets — including The Intercept — not subject to Israeli censorship orders.”  

Nevertheless, even while acknowledging this exposure, the New York Times honoredIsrael’s request. 

The New York Times’s deputy international editor, Jodi Rudoren, replied to Greenwald’s request for an explanation: “Whether we comply, defy, or challenge an order in court in a foreign jurisdiction is a decision we make based on the particular facts before us. In this case, we felt we could tell the story of how this case is roiling Israeli society without the soldier’s name. Had we thought that the court order prevented us from providing a robust, complete version of that debate, we would have considered workaround options we have used in the past — reporting the story from outside Israel.”

The question is how much will editors actually fight to publish information that is already available elsewhere, and what is their appetite for “workaround options”?  The issue of where the news comes from is also critical because, according to an article published in The Times of Israel, “the military censor… has the authority to prevent information from being published by the media, but is limited in practice by the frequent tendency of news outlets to sidestep restrictions by quoting ‘foreign news sources.’”  Therefore, whether or not a venue like the New York Times publishes information is of critical importance.  

A second, similar case of an Israeli court order reaching into U.S. media space has now appeared.  However, this time, the court order did not apply to a newspaper, but rather to a post on Twitter.  The tweet was posted by blogger Richard Silverstein, who has broken many stories regarding Israel-Palestine [disclosure — Silverstein and I once co-authored an Open Letter in defense of Palestinian rights] According to Vocativ, the tweet involved “an alleged sexual assault by a senior justice ministry employee on his daughter” and “may have violated Israeli law on identifying minors” (although the tweet did not mention the daughter’s name).  Silverstein told Salon:

Twitter’s legal department contacted me via email on Aug. 2, saying that the Israeli State Attorney’s Office had informed the company that a Hebrew tweet I publishedon May 18 violated an Israeli gag order in the Becker case. The company asked if I would be willing to delete the tweet myself. I refused, asking them not to take any action in the matter until I could consult legal counsel. I argued that the tweet didn’t violate Twitter’s terms of service or U.S. law. The company, which is based in San Francisco, was under no obligation to impose Israeli law upon me based on what I posted to my feed.

Twitter’s legal team wrote again two days later, saying that they’d decided to censor the tweet inside Israel.

Again, the question of how information can or cannot circulate, who governs it, and how national court orders and boundaries can and should be honored, is at the core of this issue.  Silverstein explained how the government’s chief lawyer evoked the idea that this case was, in the lawyer’s words, a “multi-jurisdictional crime committed not just in Israel but in jurisdictions in which it [the tweet] was published.”  Silverstein said: 

There is no such thing as a “multi-jurisdictional crime” involving the internet. Certainly, there are such crimes involving genocide or other serious offenses in which an offender may be prosecuted outside his home country or the place where the crimes were committed. Perhaps in cases of computer fraud involving hacking into accounts of financial institutions one might argue on behalf of such a theory. But publishing content to social media hasn’t yet been accorded such status.

Danny O’Brien, International Director of the Electronic Freedom Foundation told Salon:

There are clearly parallels between the New York Times’s decision and that of social media companies.  Part of the calculation on the New York Times’ part may be whether they will lose the accreditation; part of the calculation of social media platforms is whether they will be financially penalized in Israel, or even blocked.  The ratchet rarely moves toward more freedom of expression though: even though the chances of Twitter being blocked or the NYT losing creditation in Israel are small, the threat may be sufficient.

I’d add to this the novelty in this case — as far as we know, the Israeli State Attorney has not attempted a similar procedure before. This seems to be confirmed by Twitter’s transparency reports on Israeli requests.  Now that the Israeli government knows that Twitter will comply with these actions, one might expect more attempts. The biggest danger is because the line has not been clearly and legally defined, the censorship can potentially grow without real oversight by Israel’s courts or the people. The process — both on the State Attorney’s side, and on Twitter, continues to lack real transparency or accountability.

In many respects, the issue involves the basic notion of national sovereignty and international cooperation.  And again, this is of specific concern with regard to the state of Israel and protest over its policies with regard to the Palestinians.  How much will states like the US comply with Israel when it involves the suppression and censorship of legitimate forms of dissent and protest?  How much damage will be done to freedom of speech in the name of repressive state policies to which journalists and others might be asked to comply?

Turning now to Facebook, we find that an order issued at the start of the year by Army censor Ariella Ben Avraham has taken root.  In February the Times of Israelnoted that whereas before only established news sources were required to ask for permission before publishing what might be construed as sensitive security information, this new order demanded that “dozens of Facebook users and bloggers” were now under the same strictures, under penalty of law: “failure to do so would constitute a violation of the state of emergency that Israel has kept in place since its founding.”   The Times quotes attorney Jonathan Klinger, an expert on digital rights, who claims, “The censor does not need and cannot go to citizens who are not media outlets and restrict them from publishing whatever they want… The act of sending an order to people who haven’t broken the law in the past and without well-based suspicions that they’re breaking the law in the present constitutes disproportionate harm to freedom of speech.”  Think of how much more harmful this is to the freedom of expression for non-citizens.

And Facebook now has been asked to participate in this sort of censorship.  Between July and December of 2015, Facebook received 294 requests from the Israeli government to remove content.  Now Public Security Minister Gilad Erdan has not only said that Facebook is not doing enough, he has called it a “monster” for being derelict in its duties.

“Facebook today, which brought an amazing, positive revolution to the world, sadly, we see this since the rise of Daesh and the wave of terror, it has simply become a monster,” he said.

 Verge reports Erdan also called on Israelis to “flood” Facebook CEO Mark Zuckerberg “in every possible place with the demand to monitor the platform he established and from which he earns billions.”  It also notes that Prime Minister Netanyahu is preparing legislation that would require social media sites to remove content at the State’s request.  What is of course notable is the issue of who determines which kinds of political activism is appropriate—what is “positive” and what is “negative.”

Finally, not only is Israel enlisting Facebook and Twitter to curtail expression based solely on its determinants, it is recruiting European nations as well to aid in the effort.  O’Brien notes “there’s been a disturbing voluntary agreement in the EU between the major social media platforms and the commission.  By hitching a ride on non-judicial agreements, Israel has a chance to include its concerns into these agreements and bypass, as the EU has, any judicial process in removing content.”

According to The Times of Israel:

Erdan introduced the idea of building an international legal coalition to take action against social media platforms if they do not proactively prevent the use of their systems to upload videos, songs, photos, and other content that inspire would-be terrorists to pick up knives, guns, rocks, and other weapons to attack Israelis.

At the weekly cabinet meeting, Erdan presented ministers with an “index of incitement,” showing a correlation between instances of anti-Israel and anti-Semitic content posted by Palestinians, and the level of violence by Palestinians against Israelis.

Thus Erdan has already determined the “index” for European nations to use, and recent cases have shown just how vague and open-ended this term can be when applied to Palestinians.  Using social media “incitement” as a charge to detain and imprison hundreds of Palestinians, from internationally renowned physicist Imad Al-Barghouti to a young Palestinian poet named Dareen Tatour.  Both cases drew international attention and support.  An Open Letter signed by 340 intellectuals and activists from around the world, including Angela Davis, Noam Chomsky, and Judith Butler was issued for Al-Barghouti, and more than 150 writers, poets and artists, including nine Pulitzer Prize winners and 14 recipients of Guggenheim Fellowships, signed a petition demanding that the Israeli government free Tatour.  Critically, both these efforts drew attention as well to the cases of those lesser-known detainees and to the issue of Internet censorship and intimidation taking place in Israel.

All this attention to controlling the media, of exerting the notion of sovereignty way past its boundaries, of trying to put the social media genie back in its bottle, promises to be futile.  In response to the indictment of social media for aiding and abetting “incitement,” Zvi Bar’el writes in Ha’aretz:

Those who want to attribute to social media the power to harness others to action have to explain how the first and second intifadas broke out without them, and how the terror attacks of the 1970s and 1980s won legitimacy among the Palestinians.

The truth is that the answer to this question is found in what might be defined as “a reality that incites.” This is a reality shared by peoples under occupation, populations living in conditions of terrible distress where there is no need for incitement and encouragement to action. Reality is what incites them.

Until the facts on the ground change dramatically, there will always be a way to express opposition on the Internet, and these attempts by Israel will only end up abridging more rights at home.