Ed: Josh, political science has long posed a distinction between public spaces and private ones. Yet it seems like many platforms on the Internet, such as Facebook, cannot really be categorized in such terms. If this correct, what does it mean for how we should police and govern the Internet?

Josh: I think that is right – many online spaces are neither public nor private. This is also an issue for some for privacy legal frameworks (especially in the US).. A lot of the covenants and agreements were written forty or fifty years ago, long before anyone had really thought about the Internet. That has now forced governments, societies and parliaments to adapt these existing rights and protocols for the online sphere. I think that we have some fairly clear laws about the use of human intelligence sources, and police law in the offline sphere. The interesting question is how we can take that online. How can the pre-existing standards, like the requirement that procedures are necessary and proportionate, or the ‘right to appeal’, be incorporated into online spaces? In some cases there are direct analogies. In other cases there needs to be some re-writing of the rule book to try figure out what we mean. And, of course, it is difficult because the internet itself is always changing!

Ed: So do you think that concepts like proportionality and justification need to be updated for online spaces?

Josh: I think that at a very basic level they are still useful. People know what we mean when we talk about something being necessary and proportionate, and about the importance of having oversight. I think we also have a good idea about what it means to be non-discriminatory when applying the law, though this is one of those areas that can quickly get quite tricky. Consider the use of online data sources to identify people. On the one hand, the Internet is ‘blind’ in that it does not automatically codify social demographics. In this sense it is not possible to profile people in the same way that we can offline. On the other hand, it is in some ways the complete opposite. It is very easy to directly, and often invisibly, create really firm systems of discrimination – and, most problematically, to do so opaquely.

This is particularly challenging when we are dealing with extremism because, as we pointed out in the report, extremists are generally pretty unremarkable in terms of demographics. It perhaps used to be true that extremists were more likely to be poor or to have had challenging upbringings, but many of the people going to fight for the Islamic State are middle class. So we have fewer demographic pointers to latch onto when trying to find these people. Of course, insofar as there are identifiers they won’t be released by the government. The real problem for society is that there isn’t very much openness and transparency about these processes.

Ed: Governments are increasingly working with the private sector to gain access to different types of information about the public. For example, in Australia a Telecommunications bill was recently passed which requires all telecommunication companies to keep the metadata – though not the content data – of communications for two years. A lot of people opposed the Bill because metadata is still very informative, and as such there are some clear concerns about privacy. Similar concerns have been expressed in the UK about an Investigatory Powers Bill that would require new Internet Connection Records about customers, online activities.  How much do you think private corporations should protect people’s data? And how much should concepts like proportionality apply to them?

Ian: To me the distinction between metadata and content data is fairly meaningless. For example, often just knowing when and who someone called and for how long can tell you everything you need to know! You don’t have to see the content of the call. There are a lot of examples like this which highlight the slightly ludicrous nature of distinguishing between metadata and content data. It is all data. As has been said by former US CIA and NSA Director Gen. Michael Hayden, “we kill people based on metadata.”

One issue that we identified in the report is the increased onus on companies to monitor online spaces, and all of the legal entanglements that come from this given that companies might not be based in the same country as the users. One of our interviewees called this new international situation a ‘very different ballgame’. Working out how to deal with problematic online content is incredibly difficult, and some huge issues of freedom of speech are bound up in this. On the one hand, there is a government-led approach where we use the law to take down content. On the other hand is a broader approach, whereby social networks voluntarily take down objectionable content even if it is permissible under the law. This causes much more serious problems for human rights and the rule of law.

Read the full report: Brown, I., and Cowls, J., (2015) Check the Web: Assessing the Ethics and Politics of Policing the Internet for Extremist Material. VOX-Pol Publications.

Ian Brown is Professor of Information Security and Privacy at the OII. His research is focused on surveillance, privacy-enhancing technologies, and Internet regulation.

Josh Cowls is a a student and researcher based at MIT, working to understand the impact of technology on politics, communication and the media.

Josh and Ian were talking to Blog Editor Bertie Vidgen.

*please note that the views given here do not necessarily reflect the content of the report, or those of the lead author, Ian Brown.

Ed: Josh, could you let us know the purpose of the report, outline some of the key findings, and tell us how you went about researching the topic?

Josh: Sure. In the report we take a step back from the ground-level question of ‘what are the police doing?’ and instead ask, ‘what are the ethical and political boundaries, rationale and justifications for policing the web for these kinds of activity?’ We used an international human rights framework as an ethical and legal basis to understand what is being done. We also tried to further the debate by clarifying a few things: what has already been done by law enforcement, and, really crucially, what the perspectives are of all those involved, including lawmakers, law enforcers, technology companies, academia and many others.

We derived the insights in the report from a series of workshops, one of which was held as part of the EU-funded VOX-Pol network. The workshops involved participants who were quite high up in law enforcement, the intelligence agencies, the tech industry civil society, and academia. We followed these up with interviews with other individuals in similar positions and conducted background policy research.

Ed: You highlight that many extremist groups (such as Isis) are making really significant use of online platforms to organize, radicalize people, and communicate their messages.

Josh: Absolutely. A large part of our initial interest when writing the report lay in finding out more about the role of the Internet in facilitating the organization, coordination, recruitment and inspiration of violent extremism. The impact of this has been felt very recently in Paris and Beirut, and many other places worldwide. This report pre-dates these most recent developments, but was written in the context of these sorts of events.

Given the Internet is so embedded in our social lives, I think it would have been surprising if political extremist activity hadn’t gone online as well. Of course, the Internet is a very powerful tool and in the wrong hands it can be a very destructive force. But other research, separate from this report, has found that the Internet is not usually people’s first point of contact with extremism: more often than not that actually happens offline through people you know in the wider world. Nonetheless it can definitely serve as an incubator of extremism and can serve to inspire further attacks.

Ed: In the report you identify different groups in society that are affected by, and affecting, issues of extremism, privacy, and governance – including civil society, academics, large corporations and governments

Josh: Yes, in the later stages of the report we do divide society into these groups, and offer some perspectives on what they do, and what they think about counter-extremism. For example, in terms of counter-speech there are different roles for government, civil society, and industry. There is this idea that ISIS are really good at social media, and that that is how they are powering a lot of their support; but one of the people that we spoke to said that it is not the case that ISIS are really good, it is just that governments are really bad!

We shouldn’t ask government to participate in the social network: bureaucracies often struggle to be really flexible and nimble players on social media. In contrast, civil society groups tend to be more engaged with communities and know how to “speak the language” of those who might be vulnerable to radicalization. As such they can enter that dialogue in a much more informed and effective way.

The other tension, or paradigm, that we offer in this report is the distinction between whether people are ‘at risk’ or ‘a risk’. What we try to point to is that people can go from one to the other. They start by being ‘at risk’ of radicalization, but if they do get radicalized and become a violent threat to society, which only happens in the minority of cases, then they become ‘a risk’. Engaging with people who are ‘at risk’ highlights the importance of having respect and dialogue with communities that are often the first to be lambasted when things go wrong, but which seldom get all the help they need, or the credit when they get it right. We argue that civil society is particularly suited for being part of this process.

Ed: It seems like the things that people do or say online can only really be understood in terms of the context. But often we don’t have enough information, and it can be very hard to just look at something and say ‘This is definitely extremist material that is going to incite someone to commit terrorist or violent acts’.

Josh: Yes, I think you’re right. In the report we try to take what is a very complicated concept – extremist material – and divide it into more manageable chunks of meaning. We talk about three hierarchical levels. The degree of legal consensus over whether content should be banned decreases as it gets less extreme. The first level we identified was straight up provocation and hate speech. Hate speech legislation has been part of the law for a long time. You can’t incite racial hatred, you can’t incite people to crimes, and you can’t promote terrorism. Most countries in Europe have laws against these things.

The second level is the glorification and justification of terrorism. This is usually more post-hoc as by definition if you are glorifying something it has already happened. You may well be inspiring future actions, but that relationship between the act of violence and the speech act is different than with provocation. Nevertheless, some countries, such as Spain and France, have pushed hard on criminalising this. The third level is non-violent extremist material. This is the most contentious level, as there is very little consensus about what types of material should be called ‘extremist’ even though they are non-violent. One of the interviewees that we spoke to said that often it is hard to distinguish between someone who is just being friendly and someone who is really trying to persuade or groom someone to go to Syria. It is really hard to put this into a legal framework with the level of clarity that the law demands.

There is a proportionality question here. When should something be considered specifically illegal? And, then, if an illegal act has been committed what should the appropriate response be? This is bound to be very different in different situations.

Ed: Do you think that there are any immediate or practical steps that governments can take to improve the current situation? And do you think that there any ethical concerns which are not being paid sufficient attention?

Josh: In the report we raised a few concerns about existing government responses. There are lots of things beside privacy that could be seen as fundamental human rights and that are being encroached upon. Freedom of association and assembly is a really interesting one. We might not have the same reverence for a Facebook event plan or discussion group as we would a protest in a town hall, but of course they are fundamentally pretty similar.

The wider danger here is the issue of mission creep. Once you have systems in place that can do potentially very powerful analytical investigatory things then there is a risk that we could just keep extending them. If something can help us fight terrorism then should we use it to fight drug trafficking and violent crime more generally? It feels to me like there is a technical-military-industrial complex mentality in government where if you build the systems then you just want to use them. In the same way that CCTV cameras record you irrespective of whether or not you commit a violent crime or shoplift, we need to ask whether the same panoptical systems of surveillance should be extended to the Internet. Now, to a large extent they are already there. But what should we train the torchlight on next?

This takes us back to the importance of having necessary, proportionate, and independently authorized processes. When you drill down into how rights privacy should be balanced with security then it gets really complicated. But the basic process-driven things that we identified in the report are far simpler: if we accept that governments have the right to take certain actions in the name of security, then, no matter how important or life-saving those actions are, there are still protocols that governments must follow. We really wanted to infuse these issues into the debate through the report.

Read the full report: Brown, I., and Cowls, J., (2015) Check the Web: Assessing the Ethics and Politics of Policing the Internet for Extremist Material. VOX-Pol Publications.

Josh Cowls is a a student and researcher based at MIT, working to understand the impact of technology on politics, communication and the media.

Josh Cowls was talking to Blog Editor Bertie Vidgen.