Of course, all states carefully monitor information, and Israel is not the only country that advertises itself as being an “open democracy” while imposing strict kinds of censorship.  But recent developments in Israel signal not only the kinds of things it wishes to censor beyond its borders, but also how it is systematically censoring political dissent and monitoring social media.  

Israel’s authority to carry out such monitoring and censorship still largely derive from measures called the “Defense (Emergency) Regulations,” which were put in place in 1945 during the British Mandate.  These have been adapted to the present day in three problematic manners.  First, Israel is imposing gag orders on international journalists.  In some cases, this holds true even if the information included in an international report is already available in Israel itself.  This puts international journalists and editors in the difficult position of determining how much information is worth fighting for.

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 honored Israel’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 published on 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.