Internet intermediaries and counter-terrorism: Between self-regulation and outsourcing law enforcement1

Abstract

Recent years have seen increasing pressure on Internet intermediaries that provide a platform for and curate third-party content to monitor and police, on behalf of the State, online content generated or disseminated by users. This trend is prominently motivated by the use of ICTs by terrorist groups as a tool for recruitment, financing, and planning operations. States and international organizations have long called for enhanced cooperation between the public and private sectors to aid efforts to counter terrorism and violent extremism. However, as the Special Rapporteur on Freedom of Expression noted in his latest report to the Human Rights Council, 'the intersection of State behaviour and corporate roles in the digital age remains somewhat new for many States'. Detailed information on the means and modalities of content control exercised by online platforms is scarce. Terms of service and community standards are commonly drafted in terms that do not provide sufficiently clear guidance on the circumstances under which content may be blocked, removed or restricted, or access to a service may be restricted or terminated. Users have limited possibilities to challenge decisions to restrict material or access to a service. Moreover, as private bodies, such platforms are generally subject to limited democratic or independent oversight. At the same time, having private actors such as social media companies increasingly undertake traditionally public interest tasks in the context of Internet governance is likely unavoidable, as public authorities frequently lack the human or technical resources to satisfactorily perform these tasks. Against this background, this paper aims to examine ways to define the contours of the division of responsibilities in countering terrorism and violent extremism between the public and private spheres. It addresses ways to ensure that Internet intermediaries carry out quasi-enforcement and quasi-adjudicative tasks in a manner compliant with international human rights norms and standards.