Islamophobia on the Rise Due to President 45: An Op-Ed

Islamophobia on the Rise Due to President 45: An Op-Ed

By Yousra Jouglaf

“[I call for] a total and complete shutdown of Muslims entering the United States.” [1]At the time this statement was made, Donald Trump was the Republican frontrunner in the 2016 presidential election.[2] Less than a year later, Trump beat out Democratic-nominee Hillary Rodham Clinton, laying claim to the presidency in a surprising win.[3] However, three years later, and in the face of rising white supremacy and its supporters, his win no longer seems so surprising. Trump’s rhetoric against ethnic minorities caused what can only be described as the rebirth of xenophobia; white supremacists across the country and the world began to come out of hiding, finding warmth under the spotlight Trump cast for their bigoted beliefs to finally show. Two dates now haunt the Muslim community for the rest of their lives: 9/11 and 11/9, the date Trump became the U.S. President-elect.[4]

Upon Donald Trump’s taking of office, he has not been shy about his condescension of non-white communities. White supremacy has been on the rise since his term began — in 2017 alone, the Federal Bureau of Investigations reported 8,126 hate crime offenses with 8,493 victims.[5] In an analysis on single-bias incidents, the FBI reported that 58.1% of those hate crime incidents were motivated by race, with an additional 22% prompted by religious bias.[6] These incidents share a common denominator: bigotry on the rise.[7] Americans across the nation have serious concerns about the rise of bigotry and white supremacy; in a poll conducted by Quinnipiac University, 63% percent of 1,238 surveyed voters nationwide responded “yes” to a question asking whether Trump’s election has increased prejudice and hatred in the United States.[8] Ethnic minorities and their white counterparts alike voted similarly, with genuine concern for the safety of their families and their neighbors.[9]

This concern has become a serious plight for Muslims around the world and in the United States. But the increase in concern begs the question of what caused it in the first place, and moreover, how does one become a radicalized white supremacist to begin with? White supremacists are commonly misconceived as “disaffected white guy[s] with economic anxieties.”[10] Research conducted by Kathy Blee of the University of Pittsburgh, an expert in white extremism, shows that this misconception is not only untrue, but very dangerous.[11] It’s casual viewers, usually white males, belonging to the middle class who are drawn into the white supremacy movement.[12] White supremacist groups pander to the specific fears of these viewers, targeting people “who are aimless, marginalized, isolated, and quite extreme in their thinking.”[13]

In the United States alone, there has been a steep increase in white supremacy-motivated hate crimes since Trump’s reign began.[14] White supremacists in the U.S. have been linked to at least 50 deaths within the last year, whereas “Islamist extremism directed at Westerners has dropped dramatically.”[15] Brian Levin, director of the Center for the Study of Hate and Extremism at California University, San Bernardino noted that, “This threat of homegrown, far-right-wing white nationalism, terrorism, and extremism is the most prominent threat facing our nation.”[16] As polarization continues to plague our country, the targeted groups for hate crimes have been immigrants and foreigners, with special focus on Muslims and Jews.[17] As the rise in hate crimes continues, we see little national leadership and sensitivity from Donald Trump, whose most recent comment on the rise of white supremacy was to defer blame to “a small group of people ‘with very, very serious problems.’”[18] Trump blatantly denied the existence of a “worrying rise” in white supremacy.[19]

The “small group of people” he referred to, however, did not find the spotlight for their supremacy to shine on their own.[20] In fact, Brenton Tarrant, the New Zealand terrorist who took the lives of 50 Muslims, had an 80-page manifesto in which he praised Trump, mentioning him by name because he “saw him [Trump] as a symbol of renewed white identity.”[21] When questioned about the Charlottesville, Virginia event where white nationalist marchers met counter-protesters in a violent riot, Trump’s response did not decry the white nationalists. Instead, Trump took to Twitter to define the nationalists as “very fine people.”[22] When questioned about his endorsement from Ku Klux Klan leader David Duke, Trump noted he would not want to unequivocally condemn them and refuse their support without knowledge of the group and the people in it; instead, he noted there are members of the KKK that may be “totally fine”, and disavowing their support without personally knowing them “would be very unfair.”[23] This is the same man who ran on a platform classifying all Mexicans as “rapists and drug dealers”, and Muslims as “radical Islamic terrorists” deserving of a “Muslim ban”. Trump’s rhetoric is clear: when it comes to minorities, the act of one man speaks for his entire race or religion. Yet when it comes to white supremacists, he can only refer to them as “very fine people”.[24]

On March 14th, 2019, New Zealand’s Muslim Christchurch community gathered at the Masjid al Noor Mosque for Friday prayers, the holiest day of the week for Muslims as they pray “Jumu’ah” together in an act of congregational worship.[25] Muslims gather at different mosques for worship and to “develop unity, cooperation, and cohesiveness” within both Muslim and non-Muslim communities.[26] It is meant to be a day of peace, love, and worship. It is now, however, a day that has been slightly tainted with the fear of untimely death as Muslim worshippers and their family members alike have sought to reduce their attendance for fear of attack.[27] Now, when devout Muslims return for Jumu’ah prayer, they may no longer be picturing a peaceful house of worship; instead, they may see Brenton Tarrant’s unapologetic face flashing a symbol of white supremacy at his initial sentencing.[28]

Trump’s rhetoric has undeniably played a large part in the rise of white supremacy. From the very beginning of his campaign, Trump has targeted minorities as cause for the different issues plaguing our country.[29] He has emboldened white supremacists and other extremists by displacing blame on innocent minority groups, causing a larger rift and further polarizing an already divided nation.[30] Trump centered his campaign platform around appealing to the right-wing supremacists who have caused the very trauma minorities are experiencing today. He constructed an “Us v. Them” narrative, defining Muslims as a violent threat to the safety of American citizens.[31] This xenophobic rhetoric resonated with extremists who had been searching for further reason to hate their Muslim neighbors, because if the president can speak hatefully toward Muslims, then why can’t they?[32] It gave them the permission they needed to come out of hiding, for they finally had a president who shared the same sentiments about minorities they did.[33] Trump ostensibly legitimized and lent credibility to their fear, and that was all white-supremacists needed to inspire their violence-driven views and actions.[34]

Trump’s rhetoric may not be the proximate cause of the rise of xenophobia, racism, and hate crimes, but it is surely the ground by which white supremacists have found their footing. Trump has played an integral role in heightening the fears white supremacists already held, and his continued denial of white supremacy’s rise only furthers legitimizes its existence. Not condemning the acts of terror against the Muslim community (both nationwide and internationally) as acts of terrorism stemming exactly from white supremacy is an issue in itself. The blind eye Trump has turned numerous times against minority communities is the same eye which sends a wink of approval to extremists looking for a reason to incite violence and murder communities of color. The notion of white supremacy is rooted in the belief that the Caucasian race reigns supreme above any and all others,[35] and Trump’s refusal to discount such a notion only further fuels the fire that will eventually overwhelm us all.

When that day comes, the Muslim community will open its arms to any and all seeking help. And we will open our arms just as Christchurch’s first victim, Hajj-Daoud Nabi did, with a “Welcome, brother.” We can only hope the rest of the world will do the same.

[1] Johnson, Jenna Trump Calls for ‘Total and Complete Shutdown of Muslims Entering the United States,’ WASH. POST (Dec. 7, 2015)

[2] Id.

[3] Author Unknown, (Nov. 9 2016), https://www.bbc.com/news/election-us-2016-37920175

[4] Oakley, Nicola “11/9 is the new 9/11”: Americans Liken Trump’s Win to Most Devastating Day in Country’s History, MIRROR (Nov. 9, 2016)

[5] Federal Bureau of Investigation, Uniform Crime Reporting Program ‘s Hate Crime Statistics (2017), https://ucr.fbi.gov/hate-crime/2017/topic-pages/incidents-and-offenses

[6] Id.

[7] Id. 

[8] Malloy, Tim Hatred on the, American Voters Say, Quinnipiac University National Poll Finds; Concern about Anti-Semitism Jumps in One Month (Mar. 9, 2017)

[9] Id.

[10] Siegler, Kirk, A ‘Mainstreaming of Bigotry’ As White Extremism Reveals Its Global Reach, (Mar. 16, 2019)

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Collinson, Stephen, Trump Again Punts On White Supremacy After New Zealand Attacks, CNN (Mar. 16, 2019).

[19] Id.

[20] Id.

[21] Id.

[22] Merica, Dan, Trump Says Both Sides to Charlottesville Backlash, CNN (Aug. 16, 2017).

[23] Kessler, Glenn, Donald Trump and David Duke: For The Record, Washington Post (Mar. 1, 2016).

[24] Kessler, Glenn, Donald Trump and David Duke: For The Record, Washington Post (Mar. 1, 2016).

[25] Author Unknown, Salutal-Jumu’ah, https://www.alislam.org/library/book/salat/friday-prayer/

[26] Id.

[27] Hui, Nicole, Canadian Muslim Community Afraid to Attend Mosque After New Zealand Shootings Today, Narcity. (Mar. 14, 2019)

[28] Feuerherd, Ben, New Zealand ‘Shooter’ Flashes ‘White Power’ Symbol in Court, New York Post. (Mar. 15, 2019)

[29] Ye Hee Lee, Michelle, Donald Trump’s False Comments Connects Mexican Immigrants and Crime, Washington Post (July 8, 2015).

[30] Id.

[31] Williams, Jennifer, Donald Trump’s Speech Scared Me as an American Muslim. It Should Scare You, Too. Vox. (June 14, 2016)

[32] Id.

[33] Id.

[34] Id.

[35] https://www.merriam-webster.com/dictionary/white%20supremacist

The Nordic Myth: A Criticism of the Loki that is “Democratic Socialism”

The Nordic Myth:
A Criticism of the Loki that is “Democratic Socialism”

By Erich Greiner

The debate surrounding “Democratic Socialism” has entered again into the headlines in light of the recent entry of United States Senator Bernie Sanders into the race for the Democratic Party nomination for the President of the United States[1] and the historic election of Congresswoman Alexandria Ocasio-Cortez, a “self-declared Democratic socialist” to the House of Representatives during the 2018 midterms.[2] Embodying the left-wing populism[3] that has surged in response to the rise of right-wing populism under President Donald Trump[4],  both Senator Sanders and Congresswoman Ocasio-Cortez have campaigned on Medicare for All, tuition free public college, a fifteen dollar an hour minimum wage, and advocated for the “Green New Deal” to combat climate change. [5],[6] Both have also pointed to Scandinavian social democracy—the welfare states of Norway, Sweden, and Denmark[7]—as model for the United States to follow.[8],[9]  Advocates of the model cite that Scandinavians, and more specifically Danes, “are more likely to have jobs than Americans,. . . in many cases. . .earn substantially more, . . . take more vacations. . .,” and that “income inequality is much lower, and life expectancy is higher.”[10] However, this analysis belies certain truths.

First is the false premise that Scandinavian “third-way” model is, in fact, socialist. It would be more accurate to say that the economies of Norway, Denmark, and Sweden are social-democratic than democratic-socialist. [11] Danish Prime Minister Lars LØkke Ramussen himself disavowed the label at a speech at Harvard’s Kennedy School of Government, stating, “The Nordic model is an expanded welfare state which provides a high level of security to its citizens, but it is also a successful market economy. . .” [12] In fact, none of the Nordic states could be considered traditionally socialist under the definition of socialism: “any of various economic political theories advocating collective or governmental ownership and administration of the means of production and distribution of goods”—unlike a country such as Venezuela where the government “nationalized” the oil industry.[13],[14]

Furthermore, the goods associated with the social-democratic system cited in support of the Nordic model are largely misconstrued as products of the system, instead of existing before the creation of the expansive welfare state, or, in some cases, actively being hobbled by the enactment of the social-democratic system. Due in large part to the necessity of innovation demanded by the harsh climate and limited natural resources of the region, the peoples of the Nordic countries adopted liberal economic policies, relying on optimizing “ ‘maximum profitable agricultural activity’ and taking greater advantage of international trade.”[15] The adoption of these policies, the enforcement of property rights that enabled the transfer of land from landlords to farmers, the creation of small, localized banks that would extend credit to entrepreneurs with little or no collateral, and competition between firms of all sizes enabled Denmark’s economy to outpace better-resourced countries such as Ireland in the late nineteenth century.[16] During this time Denmark had a larger population than Ireland, higher levels of agricultural output, a greater level of trade, a lower national debt, a higher level of income, and a demonstrably higher standard of living than Ireland and Western Europe.[17] Moreover, over the span of a century, some of the Nordic state’s most famous brands, on which the welfare state greatly relies as a source of tax revenue were developed: Ikea, H&M, Volvo, Alfa Laval and Tetra Pak, all of whom have come to symbolize the brilliance of the Scandanavian free-market approach.[18] In fact, the brands’ home country of Sweden experienced the highest growth rate in per capita GDP in the world from 1870-1936.[19]

However, Sweden’s growth, like that of her sister Nordic countries, has been handicapped by the creation of the social-democratic welfare state in the early 1930s. Over nearly another century, from 1936-2008, Sweden’s growth rate fell to 13th out of 28 industrialized nations, while Denmark’s economy, which had experienced the 6th largest growth rate in the world prior to the adoption of similar social democratic policies in 1924, fell to the 16th largest growth rate from 1924-2008.[20] This stagnation is the natural outcome of a market reaction to the policies of radical social democrats that were adopted in the 1950s and 1960s in an attempt to seek a social-planned “third-way” economy, somewhere between communism and capitalism.[21] Attempting to support what Swedish Prime Minister, GÖran Perrson, deemed the “bumblebee” of massive entitlement and welfare programs on the wings of the Nordic economies’ capitalist underpinnings, Sweden and other Nordic countries have clipped those same wings by creating oppressive tax regimes.[22] With an effective marginal tax rate on Swedish businesses that at times exceeded 100 percent of profits, a private business owner could pay a marginal effective tax rate of 137% on capital gained through the issuing of new shares, costing himself money.[23] Additionally, when long-established companies such as Nokia are relied upon for nearly a quarter of Finnish growth from 1998 to 2007 despite being established over a century before, it is little wonder that innovation has been hobbled and entrepreneurship disincentivized.[24]

The adoption of the social-democratic model has also created deleterious effects that extend far beyond mere economic output. While the application of free-market principles, innovation and trade led the Nordic states to lead the industrialized world in terms of GDP and standard of living, it was the underlying social fabric and political stability that enabled the states to create such high levels of wealth. “High[] levels of trust and social capital” enabled the Danish to establish cooperative creameries that were founded by dairy farmers, whereas in the better-resourced but highly partisan Ireland, no such organizations could be founded.[25] The extraordinary level of trust is also why the aforementioned community banks could make low or no-collateral loans to entrepreneurs that provided the capital necessary to engage in business.[26] However, the adoption of social-democratic policies has also torn at the social fabric and increased mistrust. For example, though the supporters of social-democracy point to the high levels of health of citizens of Nordic states, it is interesting to note that “only the Netherlands spends more on incapacity-related unemployment than the Scandinavian countries” and that “forty-four percent believed that it was acceptable to claim sickness benefits if they were dissatisfied with their working environment.”[27] Additionally, in recent years, absence of men at work claiming sickness increased by forty-one percent during the 2002 World Cup.[28]

Even more problematic is that while distrust among the domestic population of the Nordic countries grows, immigrants face an even greater struggle. In response to the ongoing Migrant Crisis, the Nordic countries have increased restrictions and tightened access to benefits, including those that provided to health services, financial benefits, and stipends for food.[29] Further, due to the strained labor markets, even those who are highly skilled migrants face an unemployment rate 8 percentage points higher than that of native-born citizens, such as that of Finland and Sweden.[30]

In Norse mythology, Loki is the “trickster god. . . [who] often runs afoul of societal expectations”.[31] In Icelandic, loki as a common noun translates to “knot” or “tangle”.[32] Though we may look to the Scandinavian countries as a model for economic success and egalitarianism, we should not be tricked into misattributing their success to, nor become illusioned about, the entanglements and snares of the social-democratic system.

[1] Bernie Sanders Announces Presidential Run, Calls Trump an ‘Embarrassment’, Bloomberg (Feb.  19, 2019), https://www.bloomberg.com/news/articles/2019-02-19/bernie-sanders-announces-candidacy-in-2020-presidential-race.

[2] Meet Alexandria Ocasio-Cortez, the millennial socialist political novice who’s now the youngest woman ever elected to Congress, Business Insider (Jan. 8, 2019),  https://www.businessinsider.com/all-about-alexandria-ocasio-cortez-who-beat-crowley-in-ny-dem-primary-2018-6

[3] Bernie Sanders is Back, The New Yorker. (Feb. 19, 2019), https://www.newyorker.com/news/current/bernie-sanders-is-back

[4] Populism and Nationalism in the Trump Era, Cato Institute (Jan. 25, 2017), https://www.cato.org/events/populism-nationalism-trump-era

[5] Bernie Sanders is running for president—and his policies would have a huge impact on business, CNBC (Feb. 19, 2019), https://www.cnbc.com/2019/02/19/bernie-sanders-is-running-for-president-in-2020–here-is-his-platform.html

[6] This is the platform that launched Alexandria Ocasio-Cortez, a 29-year-old democratic socialist, to become the youngest woman ever elected to Congress, Business Insider (Jan. 4, 2019), https://www.businessinsider.com/alexandria-ocasio-cortez-platform-on-the-issues-2018-6

[7] Scandinavia, Encyclopedia Britannica (Jan. 10, 2019), https://www.britannica.com/place/Scandinavia

[8] “I think he’s scared: Alexandria Ocasio-Cortez celebrates Trump’s criticism of socialism in the State of the Union, Business Insider (Feb. 26, 2019), https://www.businessinsider.com/alexandria-ocasio-cortez-celebrates-trumps-slam-of-socialism-2019-2

[9] Bernie Sanders’ American Dream is in Denmark, CNN (Feb. 17, 2016), https://www.cnn.com/2016/02/17/politics/bernie-sanders-2016-denmark-democratic-socialism/index.html

[10] Something Not Rotten in Denmark, The New York Times (Aug. 16, 2018), https://www.nytimes.com/2018/08/16/opinion/denmark-socialism-fox.html

[11] Nima Sanandaji, Scandinavian Unexceptionalism: Culture, Markets, and the Failure of Third-Way Socialism, 18 (Institute of Economic Affairs, 2015)

[12] Denmark’s prime minister says Bernie Sanders is wrong to call his country socialist, VOX (Oct. 31, 2015), https://www.vox.com/2015/10/31/9650030/denmark-prime-minister-bernie-sanders

[13] Socialism, Merriam-Webster (Dec. 29, 2018), https://www.merriam-webster.com/dictionary/socialism

[14] How Venezuela Ruined Its Oil Industry, Forbes (May 7, 2017), https://www.forbes.com/sites/rrapier/2017/05/07/how-venezuela-ruined-its-oil-industry/#612e494f7399

[15] See Supra. note 11 at 12-13, (Quoting Irish economist James Beddy)

[16] Id., 13-15

[17] Id., 12-13

[18] Id. at 15

[19] Id. at 15-16.

[20] Id. at 17-18

[21] Id. at 20-21

[22] Id. at 11, 22

[23] Id., at 22-24.

[24] Id..

[25] Id., at 13 (Quoting Irish economist Kevin O’Rourke)

[26] Id.

[27] Id., at xv

[28] Id.

[29] Overwhelmed by Refugee Flows, Scandinavia Tempers its Warm Welcome, Migration Policy Institute (Feb. 10, 2016), https://www.migrationpolicy.org/article/overwhelmed-refugee-flows-scandinavia-tempers-its-warm-welcome

[30] See Supra. note 26.

[31] Loki, Norse Mythology for Smart People, https://norse-mythology.org/gods-and-creatures/the-aesir-gods-and-goddesses/loki/

[32] Id.

“ALGORITHMS FIGHTING TERRORIST CONTENT – A THREAT TO OUR BASIC FREEDOMS?”

ALGORITHMS FIGHTING TERRORIST CONTENT – A THREAT TO OUR BASIC FREEDOMS?

The Islamic State efficiently weaponized social media with their hashtag #alleyesonISIS and the publication of thousands of Youtube videos.[1] The marring videos of beheadings and other ghastly executions trolled the Internet to the inspiration of some, and the abhorrence of most.[2] Their social media propaganda recruited more than 40 000 foreign fighters from 110 countries.[3]

The Internet is a very efficient propaganda machine because content uploaded to one webpage spreads like wildfire to other platforms. This is why heads of states from all over the world have called for the industry to do more and faster to strike down terrorist content with new technology.[4] However, the current algorithms for detecting terrorist and extremist content do not have the same ability as humans to distinguish between legal and illegal content.[5] The question thus becomes: Are we ready to trade our right to freely express and receive information in exchange for security?

In this blogpost I want to address the tension between our efforts to win the online war against terrorism and the responsibility to respect and protect our right to freely express and receive information. I do not aim to answer the questions that arise, but rather, to highlight some of the challenges that must be addressed. I start by looking briefly at international and European human rights law. Then I turn to a recent legislative proposal from the European Union that calls for the development and use of automatic detection tools to rid us of “terrorist content”. Further I look at how this pressure from world leaders and legislators to take action has impacted the conduct of companies with YouTube as the example. Finally I offer some thoughts on the limitations of the current technology and how the rush to use it may seriously impact our fundamental freedoms.

1. The Law

Freedom of expression is a fundamental right enshrined in the constitution of most democratic states. It also forms an integral part of international human rights treaties. According to the Universal Declaration on Human Rights article 19, ”[e]veryone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”[6] This right was further codified in the International Covenant on Civil and Political Rights (ICCPR) article 19, which means that the Covenants 172[7] state parties are obligated to respect, protect and fulfil this right.[8] As the quoted article emphasises, the right to freely seek and receive information is an integral part of the human right to free expression.

Freedom of expression also holds a central place in the European Convention on Human Rights and Fundamental Freedoms (ECHR). Similarly to the ICCPR article 19 nr. 3, the ECHR article 10 provides that any restriction that removes information or access to it must be “prescribed by law and necessary in a democratic society” as well as protect a legitimate interest listed in article 10 nr. 2 such as “national security” and “public safety.”[9]

As the prime interpreter of the ECHR, the European Court of Human Rights has repeatedly emphasised the importance of scrutinizing national decisions to censor the publication of information in whatever form. In the case Yildirim v. Turkey, the Court held that “the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court, (…) for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest.”[10] The Court further stated that “a prior constraint is not necessarily incompatible with the Covenant as a matter of principle” but that any such restraint must be subject to a legal framework to ensure ”both tight control over the scope of bans and effective judicial review to prevent any abuse of power”.[11] This legal test is just as important to uphold in regard to traditional media as it is on the Internet. The Court acknowledged the special role of Internet in today’s information environment in the case Times Newspapers Ltd v. the United Kingdom. In their reasoning the Court stated that “[i]n the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information in general.”[12]

These human rights obligations demand that governments strike a fair balance between protection of free speech and the need to curtail terrorist propaganda in order to prevent terrorist activities. Governments are not released from their responsibility where they demand that private companies effectively provide censorship on their behalf.

2. The Rush to Crack Down on Offensive Content

For years the online platform providers have worked both separately and together to remove online terrorist and extremist content.[13] The pressure to take action has come from all corners of the world. Back in 2016 the Obama administration made it quite clear that Silicon Valley should do more to contribute to combat terrorists utilizing their online platforms.[14] Since then leaders from all over the world have joined up to pressure private companies to act faster and with more vigour to crack down on terrorist propaganda.[15]

In response to this pressure the tech-giants are taking steps to repeal unwanted content such as terrorist propaganda. As the mother company of Youtube, Google reports that it removed 1,667,587 channels and a baffling number of 7,845,400 videos during a three-month period in 2018 alone.[16] The videos are removed because they breach the YouTube Community Guidelines that prohibit content with incitement to violence, harassment, pornography or hate speech.[17] Of these removals, 6,387,658 videos were removed by automated flagging and 74,5 % of that number was removed before receiving any views, effectively prohibiting publication.[18] Although nowhere near the height of their power and popularity, ISIS supporters still managed to upload 1,348 YouTube videos and generated 163,391 views between March and June 2018.[19]

Google and Facebook have previously stated that human beings review whether to remove the content or not.[20] The reality, however, is that large parts of the removals are effected by automated or semi-automated decisions.[21] As I shall highlight below, the sophistication of this technology becomes very important for whether any laws obliging the companies to continue this practice complies with the right to express and receive information.

  1. EU Proposal: Legal Duty to Proactively Eradicate Terrorist Content

Deciding that the private companies responsible for these platforms are not doing enough, the European Union has decided that the voluntary measures are insufficient to win the battle against the terrorist propaganda. In September 2018 the European Commission launched a hard-hitting new regulation targeting “terrorist content” specifically.[22] According to the press release this term refers to “material and information that incites, encourages or advocates terrorist offences, provides instructions on how to commit such crimes or promotes participation in activities of a terrorist group.”[23]

The private companies obligated by the proposal are “all hosting service providers offering services in the EU”.[24] This definition is so broad that it is likely to affect all servers hosting user content no matter where they are based as long as they provide services in the European Union.[25] The provisions are aimed at compelling the companies to take both proactive and reactive measures to reduce the amount of terrorist content online.

The reactive duty includes the duty to remove any content flagged by the relevant member state authority within 1 hour of notice.[26] A daunting fine of up to 4 % of global turnover is what looms in the background if a company systematically fails to comply with these “removal orders” in time.[27] The one-hour limit might sound short, but if the goal is to take down the terrorist content before it creates too much damage it may even be too long. A report from 2018 spells it out for us: during one minute more than 2.5 quintillion bytes of data are created, we make more than 3,877,140 Google searches, watch more than 4,333,560 Youtube videos, and send more than 473,400 tweets.[28] When contemplating these numbers one can only imagine how much impact a video or tweet from ISIS could have in 60 minutes.

In recognition of these statistics the legislative proposal includes a duty for the private companies to deploy “automated detection tools where appropriate and when they are exposed to the risk of hosting terrorist content.”[29] These automated detection tools are algorithms that can sift through an amazing amount of data in a very short amount of time. The caveat is that applying automated detection tools to differentiate between what is “terrorist content” and what is merely “the expression of radical, polemic or controversial views in the public debate on sensitive political questions”[30] may fail. There is a risk that the algorithm detects and flags perfectly legal content.

The Commission is aware that this automated process must comply with the human rights legal framework protecting the freedom to express and receive information. The proposal therefore includes several provisions that try to ensure these rights. Examples include the duty to ensure “oversight and human assessment” of the content detected and enforcement of “effective safeguards to ensure full respect of fundamental rights, such as freedom of expression and information.”[31]

On the face of it seems like a great way to strike the balance between waging war on terrorist content and respecting fundamental human rights. The problem is that the legislation sets a lot of store by the sophistication of the automatic detection technology. It is hard to believe that the European Commission actually thinks that there can be human oversight over all content flagged by an algorithm. The details of the proposal are not yet out, so it is still unclear whether this would be an obligation or not. In any case, the use of automated detection tools to both detect and make the decision to remove content to comply with the regulation is very tempting if the goal is to take down the terrorist propaganda before it spreads.

Whether these automated detection and decision tools are within the limits of the human rights legal framework depends, as I see it, on at least three questions: 1) whether the state of technology is so sophisticated that the algorithm can differentiate between “terrorist content” and other content 2) whether the algorithm can ensure the human rights balancing test when it makes a decision to remove content at the cost of freedom to express and receive information, and 3) even if it can, whether the use of automated decisions will make it impossible for judicial review because the algorithm may not be able to provide an explanation of its legal analysis that humans can understand.

  1. Misconceptions on the Sophistication of the Technology

So how sophisticated is this automated detection and decision technology? Is it up to the job of replacing a human that can decipher legal from illegal content and make the requisite human rights legal analysis? A number of voices within the legal tech-community appear to think that it is not. The Center for Technology and Democracy (CTD) published a report on the limitations of automated social content analysis where they emphasised that the technology is not sophisticated enough to comprehend “the nuanced meaning of human communication or to detect the intent or motivation of the speaker.”[32] It is therefore important that politicians and legislators understand these limitations before they make statements or enact legislation that calls for action that cannot be done without compromising our basic human rights.

Stakeholders all over the world have reacted to the European Commissions press release on the new “terrorist content”-legislation with a message of caution and warning. This includes three United Nations Special Rapporteurs, the Council of Europe, private companies and NGOs.[33] One of these organisations, The Global Networking Initiative (GNI), stated as part of a lengthy article that they believe the proposal as it stands “could unintentionally undermine [the shared objective of tackling dissemination of terrorist content online] …by putting too much emphasis on technical measures to remove content, while simultaneously making it more difficult to challenge terrorist rhetoric with counter-narratives.”[34] In addition, the GNI expressed concerns that the regulation would place significant pressure on the affected companies to ”monitor users’ activities and remove content in ways that pose risks for users’ freedom of expression and privacy.”[35] As many other stakeholders share this concern, it indicates that they do not believe the European legislator understands the limitations of the technology when they propose this duty to put in place “proactive” measures.

  1. Blindly Trading Liberty for Security?

The possibilities for using machine learning to automate decision-making can turn out to be both a blessing and a curse. The pressing need for our politicians and jurists to have in-depth knowledge on emerging technology is mounting. The fight on the online battlefield against terrorism demonstrates the stakes we are facing. Striking the balance between liberty and security is difficult, but at least up until now it has been an issue where we could understand in what direction the wind is blowing when reviewing new legislation. The duty to use automated detection and decision-making tools may shake this safeguard. We must therefore ask our selves whether we are about to, or perhaps already did, enter an era where we unintentionally and unknowingly trade our fundamental right to express and receive information in exchange for security.

 

[1] Singer, P.W. and Emerson T. Brooking. LikeWar, New York: Houghton Mifflin Harcourt, 2018, p.5.

Greenemeier, Larry. Social Media’s Stepped-Up Crackdown on Terrorists Still Falls Short. (2018), https://www.scientificamerican.com/article/social-medias-stepped-up-crackdown-on-terrorists-still-falls-short/ [Cited 02/14/2019]

[2] Koerner, Brendan I. Why ISIS is Winning the Social Media War. (2016), https://www.wired.com/2016/03/isis-winning-social-media-war-heres-beat/ [Cited 02/14/2019]

[3] BBC.com. IS foreign fighters: 5,600 have returned home – report. (2017) https://www.bbc.com/news/world-middle-east-41734069 [Cited 02/05/2019]

[4] Sengupta, Somini. World Leaders Urge Big Tech to Police Terrorist Content. (2017)

https://www.nytimes.com/2017/09/21/world/internet-terrorism-un.html [Cited 02/05/2019]

[5] Center for Democracy and Technology. Mixed Messages: the Limits of Automated Social Media Content Analysis. (2017), https://cdt.org/insight/mixed-messages-the-limits-of-automated-social-media-content-analysis/  [Cited 02/05/2019]

[6] United Nations. Universal Declaration of Human Rights. (Date unknown), http://www.un.org/en/universal-declaration-human-rights/ [Cited 02/05/2019]

[7] United Nations Treaty Collection. International Covenant on Civil and Political Rights. (2019), https://treaties.un.org/Pages/ViewDetails.aspx?chapter=4&clang=_en&mtdsg_no=IV-4&src=IND [Cited 02/09/2019]

[8] United Nations Human Rights Office of the High Commissioner. International Law. (Date Unknown), https://www.ohchr.org/en/professionalinterest/Pages/InternationalLaw.aspx [Cited 02/09/2019]

[9] Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4.XI.1950, Article 10 nr. 2.

[10] Case of Yildirim v. Turkey, Application no. 3111/10, 12/18/2012, paragraph 47.

[11] Case of Yildirim v. Turkey, Application no. 3111/10, 12/18/2012, paragraph 64.

[12] Case of Times Newspapers Ltd (nos 1 and 2) v. the United Kingdom Application no. 3002/03 and 23676/03, 03/10/2009, paragraph 27.

[13] Greenemeier, Larry. Social Media’s Stepped-Up Crackdown on Terrorists Still Falls Short. (2018), https://www.scientificamerican.com/article/social-medias-stepped-up-crackdown-on-terrorists-still-falls-short/ [Cited 02/14/2019]

[14] Handeyside, Hugh. Social Media Companies Should Decline the Government’s Invitation to Join the National Security State. (2016), https://www.justsecurity.org/28755/social-media-companies-decline-governments-invitation-join-national-security-state/ [Cited 02/14/2019]

[15] Sengupta, Somini. World Leaders Urge Big Tech to Police Terrorist Content. (2017)

https://www.nytimes.com/2017/09/21/world/internet-terrorism-un.html [Cited 02/05/2019]

[16] Google. Transparacy Report: YouTube Community Guidelines enforcement. (2018), https://transparencyreport.google.com/youtube-policy/removals?hl=en&total_removed_videos=period:Y2018Q3;exclude_automated:&lu=total_removed_videos [Cited 02/05/2019]

[17] Ibid.

[18] Ibid.

[19] Greenemeier, Larry. Social Media’s Stepped-Up Crackdown on Terrorists Still Falls Short. (2018), https://www.scientificamerican.com/article/social-medias-stepped-up-crackdown-on-terrorists-still-falls-short/ [Cited 02/14/2019]

[20] Council of Europe. “Algorithms and Human Rights: Study on the Human Rights Dimensions of Automated Data Processing Techniques (in particular algorithms) and Possible Regulatory Implications.” Council of Europe Study DGI(2017)12, p. 18.

[21] Ibid.

[22] European Commission. State of the Union 2018: Commission proposes new rules to get terrorist content off the web. (2018), http://europa.eu/rapid/press-release_IP-18-5561_en.htm [Cited 02/06/2019]

[23] Ibid.

[24] European Commission. State of the Union 2018: Commission proposes new rules to get terrorist content off the web. (2018), http://europa.eu/rapid/press-release_IP-18-5561_en.htm [Cited 02/06/2019]

[25] Bennett, Owen. The EU Terrorist Content Regulation – a threat to the ecosystem and our users’ rights. (2018), https://blog.mozilla.org/netpolicy/2018/11/21/the-eu-terrorist-content-regulation-a-threat-to-the-ecosystem-and-our-users-rights/ [Cited 02/06/2019]

[26] European Commission. State of the Union 2018: Commission proposes new rules to get terrorist content off the web. (2018), http://europa.eu/rapid/press-release_IP-18-5561_en.htm [Cited 02/06/2019]

[27] Ibid.

[28] DOMO. Data Never Sleeps 6.0: How Much Data is Created Every Minute? (2018/2019), https://www.domo.com/learn/data-never-sleeps-6 [Cited 02/06/2019]

[29] European Commission. State of the Union 2018: Commission proposes new rules to get terrorist content off the web. (2018), http://europa.eu/rapid/press-release_IP-18-5561_en.htm [Cited 02/06/2019]

[30] Ibid.

[31] Ibid.

[32] Center for Democracy and Technology. Mixed Messages? The Limits of Automated Social Media Content Analysis. (2017) https://cdt.org/insight/mixed-messages-the-limits-of-automated-social-media-content-analysis/ [Cited 02/06/2019]

[33] See for example: 1) Open Letter from the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; the Special Rapporteur on the right to privacy and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, 12/07/2018, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=24234, and 2) Council of Europe. Misuse of anti-terror legislation threatens freedom of expression. (2018),

https://www.coe.int/en/web/commissioner/blog/-/asset_publisher/xZ32OPEoxOkq/content/misuse-of-anti-terror-legislation-threatens-freedom-of-expression https://edri.org/terrorist-content-regulation-warnings-from-the-un-and-the-coe/

[34] Global Network Initiative. GNI Statement on Europe’s Proposed Regulation on Preventing the Dissemination of Terrorist Content Online. (2019), https://globalnetworkinitiative.org/gni-statement-draft-eu-regulation-terrorist-content/#_ftn15 [Cited 02/06/2019]

[35] Ibid.