Some thoughts about the Israeli Supreme Court’s judgement upholding the Israeli law enforcement practice of informally “informing” platforms about content that appears to violate Israeli law or platforms’ terms of service. https://supremedecisions.court.gov.il/Home/Download?path=HebrewVerdicts%5C19%5C460%5C078%5Ck12&fileName=19078460.K12&type=2

The Court concluded that the practice does not violate anyone’s fundamental rights b/c it is voluntary. It said the NGO-petitioner failed to bring evidence of rights violations, that bots are responsible for much of the problematic content, and that bots don’t have rights.

The Court further held that the gov't is not the actor that can be said to violate any rights here. The gov't does not compel platforms to remove content; it simply notifies them about problematic content and leaves it to the platforms to ultimately decide what to do about it.

Finally, the Court concluded that the gov't may continue to engage in this practice without explicit statutory authorization and based only on its residual powers. It merely advised the state that it might want to consider advancing appropriate legislation.

What’s more, the Court said that the practice is essential for maintaining public order and national security.

Lots to unpack in this decision. First, the Court finding that the practice does not violate any administrative law requirements because no gov't actor is forcing platforms to remove content requires suspension of disbelief.

One could speculate that when a government tells platforms that certain content is illegal or dangerous, platforms tend to oblige and remove more often than not, at least in countries like Israel. A gov't request is never just a request. Gov't has leverage against platforms.

Plus, platforms have strong incentives to remove potentially harmful or unlawful content in the current climate. If government saves them the trouble of identifying that content independently and provides political and (potentially) legal cover—all the better.

Second, the decision encourages buck passing from the government to platforms. It also potentially lowers the threshold for government policing of activity that implicates platforms, leading to excessive "notifications" of allegedly problematic content.

Why bother going through formal legal channels (e.g. indictment, warrant) and submitting to judicial process when all government needs to do is pick up the phone, call a platform official, and get its way?

Third, the informal nature of this practice means no transparency and no tools for overseeing the government-platform nexus in this area. This is obviously an opening for abuse (as it turned out, the government kept no exhaustive record of its notifications to platforms).

In ongoing work focusing on the U.S., I document what I call platforms’ geopolitical turn and their increased interaction with various government agencies around national security.

I argue that the evolving government-platform nexus in this area is best understood as informal privatization, and analyze categories of circumstances in which such privatization may occur.

I call one such category “bureaucratic workarounds”. It covers cases in which gov't actors, for pragmatic, political or personal reasons, elect to pursue geopolitical and nat'l security policy goals through informal cooperation with platforms instead of ordinary gov't process.

The Israeli case illustrates that this type of informal gov't-platform dynamic is occurring in other countries. We should worry about it because it informally delegates government national security power to far less accountable actors bound by far less restrictive legal reqs.

For some reason, the Israeli Court found this dynamic unremarkable and even unavoidable.
H/t to my HLS colleagues, @FaddyKhoury and Rabea Eghbariah, who represented the petitioner before the Israeli Supreme Court.