difficult to identify which aspects of the Department’s many activities require express statutory
authority (compare: HCJ 6972/07 Akiva Laxer,Adv. v. Minister of Finance [10]). In this sense, the
petition is not ripe.
33.
As described above, it appears from the Cyber Department’s data that the overwhelming
majority of referrals by the Department to online platform operators concerns publications related
to terrorist acts and extreme violence. In my view, the fear expressed in the Petitioners’ arguments
that under the cover of this enforcement activity – which almost entirely concerns the protection
of national security – the government also contends with political messages protected within the
bounds of freedom of expression was not proven. If such were the case, it is clear that express,
concrete authorization would be required for the agency’s actions in such circumstances. The
problem is that other than the Petitioners’ general arguments of principle, no trace of evidence was
brought for the conjecture that publications that pose a challenge to freedom of speech were
blocked under the excuse of preventing offenses of incitement to violence or terror. Moreover, in
the absence of contradictory evidence, it may well be the case that a large part of the Cyber
Department’s activity concerns publications that are not produced by any human subject, but rather
a computerized object (robot), or a widespread system of hostile users who seek to promote various
unlawful messages.
34.
Another uncertainty, which also cannot be examined in the framework of the present
petition due to a lack of adequate data and the fact that the point was not argued by the parties, is
the scope of the applicability of Basic Law: Human Dignity and Liberty to expression concerning
Israel by users who are not citizens or residents of Israel, or who live in the country or have some
other territorial connection to it. In my view, it is highly doubtful if, for example, a publication by
a person outside of Israel that calls for violent action against the Israeli embassy in his country, or
against another Israeli target there, is indeed a publication that must be examined in accordance
with the constitutional balancing required under of Basic Law: Human Dignity and Liberty. This
issue was not developed by the parties, although it may be that the reason for the failure to address
this issue also derives from the lack of data held by the parties, or the difficulty of identifying the
locale and name of a person publishing on the internet.
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