How Israel nearly destroyed freedom of speech online, without even knowing it
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Reporter's notebookDrastic law only stopped after Times of Israel queried MKs

How Israel nearly destroyed freedom of speech online, without even knowing it

An effort to end Palestinian incitement on social media morphed into a bill that would have granted the state the most extensive internet censorship powers in the Western world

Raoul Wootliff covers politics, corruption and crime for The Times of Israel.

Illustrative image of 'offline' computer screens. (AP Photo/Christophe Ena)
Illustrative image of 'offline' computer screens. (AP Photo/Christophe Ena)

The so-called “Facebook incitement bill,” which came within hours of being passed into law by the Knesset this week, was born out of frustration.

In the aftermath of the deadly 2015 Paris terror attacks, when Facebook profile photos in the West were overwhelmingly painted red, white and blue in solidarity with France, the social media giant was quietly engaged in a gargantuan cleanup operation. At the request of the French government, citing a law protecting human dignity, the social media network erased a staggering 32,000 posts that included a specific photo linked to the carnage.

But as Israel dealt with its own terror wave that spread across the country from 2015 to 2016, Israeli ministers claimed that Facebook, not globally awash with blue and white in a similar act of solidarity, was refusing to remove all of the content they requested be deleted.

During nearly nine months of Palestinian terror attacks, in which over 35 Israelis were killed, “lone wolf” terrorists were frequently found to have posted praise for previous attackers on their social media accounts. Many of them mourned relatives killed in clashes or while attacking Israelis, and peppered their feeds with posts hailing or yearning for “martyrdom.”

Israel’s security establishment contended that exposure to online incitement had been proven to lead directly to violence, posing a concrete danger to the lives of innocent people.

‘A monster’

Accusing Facebook of ignoring Israeli pleas to take down posts that he said helped spread Palestinian incitement, Public Security Minister Gilad Erdan charged that the social media platform was enabling terror and responsible for loss of life.

“Facebook, which has brought a positive revolution to the world, since the rise of Islamic State and the wave of terror, has become a monster,” Erdan said in a mid-2015 interview. “The dialogue, the incitement, the lies of the young Palestinian generation are happening on the Facebook platform.”

MK Revital Swid of the Zionist Union party. (Nati Shohat/Flash90)

To tackle the perceived problem, Zionist Union MK Revital Swid submitted a bill that would have levied massive fines against Facebook for every post that included incitement that the social media giant did not immediately scrub.

Facebook’s own guidelines state, “When governments believe that something on the Internet violates their laws, they may contact companies like Facebook and ask us to restrict access to that content. When we receive such a request, it is scrutinized to determine if the specified content does indeed violate local laws. If we determine that it does, then we make it unavailable in the relevant country or territory.”

Swid’s bill — signed by both coalition and opposition lawmakers — placed the onus on Facebook itself to actively track posts and delete them.

But a frustrated Erdan, along with Justice Minister Ayelet Shaked from the Jewish Home party, had other ideas. Claiming that Facebook only acceded to half of Israel’s removal requests in the first place, they proposed a law to allow the government to force the social media platform to remove certain content based on police recommendations.

From its inception, the target of the legislation was social media, with Facebook only giving the bill its moniker as the prime example of a user-generated content platform.

Jewish Home MK Ayelet Shaked (L) with Likud parliament member Gilad Erdan during a plenum session in the Israeli parliament on November 16, 2016. (Yonatan Sindel/Flash90)

Offering an expedited legislative track for government-backed legislation as opposed to that of a private members bill lingering in committee, Erdan and Shaked succeeded in uniting their bill with Swid’s, using some legal language from both, but ultimately maintaining their own bid to compel Facebook to take posts off the internet.

However, due to one seemingly inconsequential and jargonistic 37-word clause — apparently unbeknownst to lawmakers working on the rewritten, unified proposal — the bill morphed this week into what was hours away from becoming the most extensive internet censorship law in the Western world.

“It is a monstrosity,” the Israel Democracy Institute’s Dr. Tehilla Shwartz-Altshuler said of the bill on Wednesday, in an ironic echo of Erdan’s initial charge against Facebook.

‘Any website’

On Wednesday morning, two years after the original bill was proposed and hours before it was set to be voted into law by Knesset members, Prime Minister Benjamin Netanyahu ordered the legislation be removed from the Knesset plenary agenda.

In a rare move against government-approved legislation, proposed in part by a minister from his own party, Netanyahu said that he had blocked the law out of fear it would “damage freedom of speech, and in order to ensure the right of the citizens of Israel to freely express criticism on the internet.” He called for it “to return to its original format and purpose — preventing incitement on the internet.”

Prime Minister Benjamin Netanyahu at the Knesset plenum on July 18, 2018 (Hadas Parush/Flash90 )

The problem with the bill that Netanyahu demanded be removed, as revealed by The Times of Israel, was not found in the 14 articles and 30 sub-clauses that detail what information is considered incitement, how a removal order is issued, how perpetrators can appeal, and even what measures can be taken against non-compliance. Rather, the problematic provision came in a technical formulation in the introduction of the bill on language to be used throughout the legislation.

Clause 1A of the bill states flatly that when the word “website” appears, it refers to “any website that the public or a section of the public has access to, even if that access requires a password or code, payment or no payment, or whether the site is based in Israel or abroad.”

Netanyahu’s announcement came after The Times of Israel established that this clause — as opposed to Swid’s bill, which specifically referred to “social media” — would have allowed the law to go drastically further than was previously understood and could have made it a direct threat to free speech in Israel.

Reviewing the final text of the bill after a three-hour committee meeting on Sunday, the ninth meeting dealing with the proposal in a year and a half, this reporter recognized that rather than just dealing with social media, as the committee discussions had solely focused on, the bill was radically more far-reaching.

If passed into law, it would grant the government authority to block any content from any internet site (including news websites) deemed to violate any section of Israel’s penal code — all via administrative court order, under gag order, for perpetuity.

Under the bill, a court order requested by the Justice Ministry may “force a content publisher, or the owners, directors or managers of an internet site that publishes content, to remove the content from the internet if it is convinced that a criminal act has been committed via its publication on the internet site, and that there is a real possibility that its continued publication would harm the security of an individual, the security of the state or cause serious damage to the economy or the vital infrastructure of the state.”

With “the internet” defined as “any website,” the government would thus be able to order that literally any web page on the internet be blocked in Israel.

There is no country in the democratic world where the government has internet censorship powers anywhere near those expressed in the potential bill.

“That is the most extreme application of such a law in the whole of the democratic world,” Shwartz-Altshuler said Wednesday, calling it “a serious threat to freedom of information and freedom of speech in Israel.”

“The Israel Democracy Institute previously opposed it because we thought it went too far in referring to all crimes in the penal code,” she said. “As we understand it now, it’s a monstrosity.”

“Should the law pass, the state will become social media’s chief censor,” Shwartz-Altshuler warned.

Too late?

With the government having recently proposed and passed a number of measures targeting the media, all while Netanyahu regularly attacks “fake news,” the discovery that this proposal could also affect news sites made it initially appear, to skeptics, as part of an under-the-radar effort to permit media censorship.

But in discussions with The Times of Israel, both backers of the bill who fought for a more robust application of the censorship provisions, and Knesset members who sought to limit its reach, said they had simply not understood that the law could apply to the entire internet.

Nissan Slomiansky (r), head of the Constitution, Law, and Justice, Committee and Attorney General Avichai Mandelblit in the Knesset on June 25, 2018. (Yonatan Sindel/ Flash90)

Committee chair MK Nissan Slomiasnky (Jewish Home), legal advisers to the committee, and government representatives in the meetings were also under the impression that the bill only referred to social media sites, they conceded in private conversations this week.

A Knesset official directly involved with the bill but unauthorized to speak publicly about the legislative procedure explained that their discussions had focused on how to implement the law and not the definition of the internet included in the beginning. “That was technical language and, since we had always been dealing with social media, no one questioned that it meant anything else,” they said.

Swid, who abstained from the committee vote, saying the updated version went “far beyond” her proposal, said she believed the misunderstanding was “an honest mistake.”

“No one knew this was the meaning of the bill. We didn’t discuss it. The law was supposed to apply to Facebook and Google and other social networks and that’s what we believed it to be,” she said before Netanyahu’s announcement that he was freezing the bill.

“This is a new area of legislation and we don’t have other language to base it on. My bill said ‘social media,’ but it wasn’t understood that this language would drastically change the bill,” she added.

In short, Israel nearly passed a law that could have destroyed free speech on the internet, without even knowing it.

The Times of Israel tried to question every committee member who had taken part in the preparation of the law to determine if they too misunderstood it, and whether they now planned to change the proposed legislation.

But with the Knesset this week preparing for its summer recess, and a marathon series of plenary sessions held to approve dozens of bills worked on over the summer session, MKs were largely unavailable. They were either voting in the chamber (from 10 a.m. until 7 a.m. the following day for three days in a row), or sleeping in their offices during breaks.

To speak with one committee member, this reporter waited outside the plenary chamber for four hours straight until the MK was forced to leave to use the bathroom.

By Tuesday, however, our questions, posed to both lawmakers and legal advisers, had begun to raise behind-the-scenes alarms.

Shwartz-Altshuler admitted that despite following the law from its inception and sitting in many of the committee debates, she too had missed its true meaning.

After talking with The Times of Israel, however, Shwartz-Altshuler said she did a “full review” of the law with another legal aide at the IDI and “came to the same conclusion” — the entirety of internet freedom of speech in Israel was at risk.

Dr. Tehila Shwartz Altshuler, the head of media reform and open government projects at the Israel Democracy Institute, and center, right, Noa Elefant-Loffler, senior public policy manager at Google Israel, speaking at Cyber Week, June 25, 2017 (Shoshanna Solomon/Times of Israel)

Understanding how far-reaching the bill really was, Shwartz-Altshuler, together with Swid, turned to Attorney Gur Blai, the legal adviser for the Knesset Law, Constitution and Justice committee, in a last-ditch effort to have the bill changed or removed from the Knesset agenda before the final vote.

But Swid believed at first that she had missed the boat. “We are too late,” she said late Tuesday night, hours before the scheduled vote.

Explaining that there was no opportunity to add potential amendments to the law since it was already on the Knesset agenda, and that it was certain to pass due to adamant coalition support, Swid said the only option was to now wait until after the vote to try to pass a counter-law annulling it at a later date. It would take a long time, she lamented.

Swid was wrong. What she didn’t know was that as she mourned what she believed was the inevitable passage of the law, the concerns she had passed on to the Knesset legal department were in turn being conveyed to Attorney General Avichai Mandelblit.

“The attorney general’s office was involved,” said one source with direct knowledge of the process. “It moved pretty fast once people understood what was happening.”

The prime minister’s last-minute decision to cancel the final vote was a direct result of those efforts, they said.

The attorney general’s office declined to comment on its specific involvement in the process but acknowledged that such an intervention, even at a late stage in the legislative process, is possible.

At the last minute, therefore, Israel’s free internet was saved. At least for the time being.

The bill will now face a review by Erdan and Shaked, who both expressed “disappointment” over Netanyahu’s decision to stop the law and said the legislation was justified.

Neither responded to repeated questions on whether they had understood the bill’s full meaning, whether they supported such wide censorship laws, and crucially, what the future of the legislation will be.

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