Tsafrir Abayov/AP Photo
Israeli National Security Minister Itamar Ben-Gvir attends an event to deliver weapons to private militia members in Ashkelon, Israel, on Oct. 27, 2023.
The hashtag #Al-AqsaFlood (Hamas’ code name for the October 7 attacks). The widely circulated image of a bulldozer breaking through the perimeter fence around Gaza. And a video of a egg, tomato and red pepper dish overlaid with text that reads “Soon we’ll eat victory shakshuka.”
These are a few of the online posts amid the ongoing war in Gaza that are landing Palestinian citizens of Israel and residents of East Jerusalem inside maximum security prison, on charges of inciting terrorism. The detainees, including a number of students at universities and peace activists, are being held for weeks on end until their court hearings, without bail or outside phone calls other than to legal counsel.
In total, the Israeli police have initiated 250 cases on these grounds since the attacks, citing social media activity as the legal pretext in a majority of them. The cases include investigations, interrogations, and arrests which have then led to around 80 indictments as of the end of November. Many of the posts, shared with the Prospect, range from mistranslations and misconstrued context to conflating support for the Palestinian people with support for Hamas.
These detentions are part of a sweeping crackdown on civil liberties inside Israel that civil rights groups warn could become permanent even after the war. Anti-war demonstrations have been effectively banned in many towns across Israel, with the backing of the country’s Supreme Court. New amendments to counterterrorism laws now deem the mere “consumption” of videos affiliated with terrorist organizations a potential crime. On top of that, state coordination with social media companies has ramped up to surveil and censor dissent online.
The expansion of these draconian measures amid the fog of war threatens to undermine democratic norms governing online speech, with ramifications that could reverberate across western countries as well. It highlights how social media platforms, once thought of as vehicles for open expression during times of mass unrest, are now weaponized as mass surveillance conduits by governments around the world.
ONLINE COMMUNICATIONS HAVE BEEN A FREQUENT SCAPEGOAT for Israeli intelligence failures in recent years. After a wave of “lone wolf” terror attacks in 2016, the government of Prime Minister Benjamin Netanyahu primarily blamed Facebook, and set out a plan to expand state involvement in the moderation policies of online platforms.
A core initiative that came out of that period was a new government program, the Cyber Unit, set up inside the Office of the State Attorney. Its mandate was specifically to monitor and refer online posts to social media platforms for removal without a court order, based on state laws or terms of service.
The legality of the Cyber Unit has been challenged in the Israeli Supreme Court by numerous civil liberties groups for resorting to extrajudicial means of law enforcement to censor speech. Though the Supreme Court rejected the case, it did deem the Cyber Unit's Internet referrals a form of state action, disputing the government’s argument that these were merely voluntary requests. The Cyber Unit’s referrals dramatically increased during the last conflict in Gaza in 2021, notching several thousand within the span of a month. Social media companies, in tacit agreement with the Unit, have also become more complicit with these removal requests.
The task force has brought three times as many cases and police investigations in the past two months as it did in the entirety of its previous history.
The Cyber Unit pairs with another task force at the National Security Office (NSO), set up earlier this year to monitor social media activity for terrorist threats. This has been the primary vehicle for the detention of Palestinians during the current war. The only difference between these separate units is that the NSO task force works directly with the police to then arrest citizens based on the flagged posts.
The very existence of the NSO task force would appear to undermine the legal basis for the Cyber Unit, based on its prior legal cases. Though the task force takes a heavy-handed interpretation of counterterrorism laws, its subjects can at least get their day in court. The Cyber Unit instead employs shadier practices that subvert the justice system altogether and launders enforcement to private internet companies without due process.
In an email exchange with Rabea Eghbariah, an SJD candidate at Harvard Law School who argued against the Cyber Unit before the Supreme Court in 2021, he recognized that this could be a conflict, though it’s difficult to assess the overlap in referrals by the Cyber Unit versus the NSO task force because neither have been held to account for a lack of transparency. Outside of anecdotal cases, the full scope of posts taken down by the Cyber Unit has never been made public, which was what ultimately sank the case Eghbariah argued back in 2021.
Eghbariah emphasized that the NSO task force’s practices are just as fraught, as evinced by the curtailing of civil liberties during the ongoing war. According to official statements from the NSO office, the task force has brought three times as many cases and police investigations in the past two months as it did in the entirety of its previous history (around 60 before October).
The NSO task force was put in place under Minister Itamar Ben-Gvir, a far-right political figure previously barred from holding office because of his praise for Jewish terrorist organizations. The task force’s inception was part of Ben-Gvir’s broader attempt to subordinate the Israeli police forces under his control and threaten their independent authority.
“Since the start of the war, the police have been emboldened to bypass ordinary legal protections for citizens,” said Myssana Morany, a lead attorney for civil rights group Adalah, which has taken the lead on representing Palestinians arrested for social media activity in recent indictments.
IN LARGE PART, THE RECENT UPTICK IN ARRESTS is a function of several policy changes that went into place once Israel declared war on Hamas. A standing directive by the State Attorney's office previously forced police authorities to get approval from the attorney general before investigating and executing warrants based on social media posts. Seen as a straightjacket put on the police, that directive was suspended by the state attorney in October, freeing up police investigations and detentions for incitement through online expression without bureaucratic impediment, a move cheered on by Ben-Gvir.
According to legal defense groups, the pretext for arrests is widening to encompass rhetoric that would not previously have held up in court. Just a single status update on Facebook, for example, can now be grounds for arrest. Previously, the courts would only accept cases involving repeated posts to qualify as incitement.
The police have acknowledged that most arrests taking place are of Palestinians. In the few cases involving Jewish peace activists, social media posts are typically secondary evidence to support other violations, such as unlawful demonstrations in the streets.
With the backing of Ben-Gvir, police forces now act with impunity to conduct investigations; barging into homes in the middle of the night and damaging property before making arrests solely based on online content.
In one case, police raided the home of a 68-year-old resident of Haifa and longtime peace activist, Yoav Bar, and arrested him for organizing antiwar demonstrations, which were promoted online. The police announcement described his detention as a “key activist in protests supporting and expressing solidarity with Hamas.”
Bar suffers from a chronic health condition, and was held in a detention center for weeks on end without treatment. Bar’s health deteriorated so much that he required immediate hospitalization before his court date. In his case, the courts ruled against the police’s charges and released him.
That’s when Ben-Gvir took to social media platform X as a bully pulpit to admonish the decision, calling the judge an enemy of the state for undercutting the police’s authority. It’s been a recurring pattern for Ben-Gvir, dating back to the protests over judicial reforms, to use any setback to attack the independence of the court system.
“Government authorities are saying this is a time of crisis and normal application of the law does not apply, and the courts are allowing that to pass,” said Morany.
Of the 80 indictments that Adalah is working on, the courts have only ruled on a few cases, and the decisions have been mixed. But with a huge backlog of cases based on digital posts, detainees are being held for extended periods in high-security prison cells before they get their hearing in court. The conditions inside high-security prisons, with restricted outside access, are far worse than ordinary criminal prisons.
According to Adalah, approximately half of the cases involve Palestinian citizens of Israel and half Palestinians living in the East Jerusalem district.
As with the case of Yoav Bar, the interpretation of the counterterrorism law is being used by the police to criminalize support for Gazans which is lumped in with support for Hamas. Palestinian students at universities in particular are being targeted for speaking out about the war, Israeli occupation, and the two-tiered justice system inside Israel. A number of student posts express solidarity with Palestinian resistance in Gaza or provide context for the October 7 attacks; some are related to organizing peace demonstrations inside Israel.
Others are as innocuous as a female student making a joke about being a bad cook and posting a picture of shakshuka with the words “victory.” The student was arrested and then released but suspended from her university. Dozens of others face disciplinary actions, including expulsion on top of other pending legal charges.
These actions against students have been cheered on by the Minister of Education Yoav Kish. In a statement, he said that schools must “immediately suspend any student or employee who supports the barbaric terrorist acts currently experienced in the State of Israel… In cases where there is indeed incitement, [you must] order a permanent expulsion.”
A new amendment that passed the Knesset in October changed counterterrorism laws to now make it illegal to merely consume online terrorist-affiliated publications and videos.
THIS CAMPAIGN IS LARGELY TAKING PLACE through right-wing grassroots networks working in concert with the police, according to Adalah. Online posts are being ratted out to the police by right-wing student organizations on campus, or through Israelis in the workplace who target Palestinian colleagues.
Civil rights groups readily acknowledge that there likely is greater support for terrorism online at the moment because of the war, some of which may violate counterterrorism laws. But the same is true among right-wing extremist groups as well. According to the digital rights group 7amleh, support for Jewish terrorism has also surged online with hardly any repercussions, suggesting that the law does not appear to be applied equally.
“Enforcement is selectively being brought down against Palestinians and Jewish citizens demanding peace, while calls for violence against Arabs proliferates,” said Nadeem Nashif, the director of 7amleh.
Content moderation biases inside social media companies also disproportionately flag Arabic content due in part to mistranslations, according to a review by 7amleh and the US based privacy group Fight for the Future. In October, Facebook repeatedly removed content just for using the Palestinian flag emoji.
Just as the Task Force has ramped up its arrests, so has the Cyber Unit. Since the start of the war, Office of the State Attorney reports show that there have been 14,600 removal requests to social media platforms, mainly to Facebook, Instagram, and TikTok, the primary platforms used in the region. During the entire year of 2021, when the last war in Gaza took place, the Unit made around 5,000 requests to platforms.
According to the State Attorney Office reports, the platforms are taking down over 90 percent of flagged posts since October, an even higher percentage than during past conflicts.
Critics of the Cyber Unit point to the high acceptance rate as evidence that the requests are not merely voluntary and amount to state censorship laundered through private companies. Some of the state’s influence comes from personal and soft power. For example, the head of Facebook’s public policy team in Israel is a former advisor to Netayahu.
In other ways though, the state can compel platforms to act through tacit threats of regulatory action. The state can punish companies who do not comply with content removal requests, either by raising taxes or bringing down regulation, as the Knesset has enforced recently.
Israeli government powers to monitor the civilian population online have expanded during the war. A new amendment that passed the Knesset in October changed counterterrorism laws to now make it illegal to merely consume online terrorist-affiliated publications and videos.
It remains an open question how the state would be capable of enforcing this law to monitor consumption. Legal groups have submitted requests to the government seeking to understand whether it will permit greater online surveillance.
It’s still unknown, for that matter, how exactly the Cyber Unit or the task force track the volumes of online content for terrorist threats. The Unit claims much of the work is done manually by officers sitting in front of desktops using keyword searches on various platforms. That would be a remarkably low-tech solution for a startup nation whose most prodigious export is surveillance devices.
Israeli intelligence units, for example, in the past have tapped a “predictive policing algorithm” to scour online content by suspected terrorists.
Some of the mobile inspections may take place through direct coercion. Palestinians have been stopped at checkpoints by police asking to inspect their phones and review their browsing history. In home raids, police will routinely seize suspects’ phones with a warrant.
State monitoring of online consumption could take even more invasive form. Israeli tech company NSO Pegasus notoriously sells its product to foreign governments to hack into the phones of journalists, dissidents and even government officials and spy on them. It can monitor location, phone calls, and web searches, including on social media.
NSO Pegasus and a similar tech company, Cobweb Technologies, which is known for working with American police departments, inked contracts with Israeli authorities as recently as this past year.
Reports from Israeli publication Calcalist revealed that these tech services are used by the Israeli police to bug the phones of its own citizens in numerous instances. It wouldn't be a stretch for the Netanyahu government to deploy this homegrown technology to monitor consumption on devices in accordance with the new counterterrorism measures. That would require far greater surveillance than has ever been used before in Israel.
