Published: May 13^th, 2018

In a precedent-setting move, Tel Aviv District Court granted eight decisions in April blocking or removing websites advertising prostitution services.[1] All the cases involved websites in Hebrew intended for an Israeli target audience and explicitly offering prostitution services. The publication of prostitution services is prohibited in accordance with the Israeli penal code: section 205C prohibits the publication of prostitution services of adults, while section 205A prohibits the publication or delivery of information concerning prostitution services of minors. Both offenses were first added to the penal code in 1998. Despite this, until the above-mentioned groundbreaking step, online prostitution services flourished and to a large extent the prostitution market shifted to the internet. It hardly seems necessary to explain in depth the gravity of the phenomenon of prostitution. Today the Israeli legislator is attacking all circles of prostitution, with the exception of engagement in prostitution itself and the consumption of prostitution services by adults.[2] As noted, those who publish prostitution services are also criminalized among the various circles of prostitution. The damage inherent in the publication of prostitution services is two-fold:[3] Firstly, such publication increases demand for prostitution services; secondly, it provides precise information about the addresses of brothels or about places and persons offering prostitution services. The fact that prostitution services were offered to anyone interested on the open web (rather than on the Darknet), in a format that could readily be located using a search engine by entering such search words as “escort girls,” “paid sex services,” and so forth, clearly proved that the provisions prohibiting the publication of prostitution services are not in practice being enforced in a satisfactory manner.[4]

The game changer in this context is the Powers to Prevent the Committing of Offenses by Means of a Website Law, 5777-2017, which came into effect in September 2017 (hereinafter: “The Powers Law”). The law relates to websites that include prohibited activities of five types: Indecent publication including the image of a minor; trade in dangerous drugs; the organization of gambling and prohibited games; publication of prostitution services; and publications of a terror organization. The law authorizes an empowered judge of the district court to order one of the three following reliefs: Restriction of access to websites including a prohibited activity of the above-mentioned types;[5] filtering of the above-mentioned websites from the search results in a search engine; and removal of the website from the host server, insofar as the server is stored in Israel.

The prosecutors in the Cyber Department of the State Attorney’s Office were authorized by the Attorney General to submit requests in accordance with the new law. In March 2018, 10 initial applications were submitted to the District Court in Tel Aviv. All the applications involved websites advertising prostitution services. As mentioned above, to date eight rulings have been given out of these 10 applications. In all these decisions, the state’s application to remove or block access to the website has been accepted, without time limitation (pending another decision).

Alongside this law, the Knesset Constitution, Law, and Justice Committee is currently discussing a government bill called the Removal of Content Constituting an Offense from the Internet Web Bill, 5776-2016.[6] According to the bill, an empowered judge at the district court will be able to order the removal of content constituting an offense and endangering state security, public security, or the security of an individual. This bill, which has become known as the “Facebook Bill,” is broader than the Powers Bill, since it addresses all types of prohibited content, whereas the Powers Law relates solely to five types, as detailed above. Conversely, the bill is narrower than the Powers Bill in the sense that, in addition to the prima facie presence of a criminal offense, the power of removal will apply only if the court is convinced that the content endangers state security, public security, or the security of an individual, whereas the Powers Law does not include a requirement of dangerousness of this type.

These two legislative initiatives reflect a perceptional change concerning law enforcement in the online domain and seek to augment the classic perception of criminal law enforcement. According to the classic perception, criminal law enforcement is effected by locating the perpetrator of the offense, collecting sufficient evidence against him, interrogating and prosecuting him, and so forth. According to the new perception, which I will term the “alternative enforcement” approach, the focus is on the act, rather than the perpetrator; on the offense, and not necessarily on the offender. The shift to the alternative enforcement approach is due to the legal, architectural, and technological characteristics of the online domain. This domain is decentralized, international, permits any user to become a speaker without charge and rapidly, facilitates anonymity, and is mediated by service providers.[7] These and other characteristics of the online domain make it particularly attractive to those who commit offenses by means of “publication,” enabling them to reach a wide audience without direct physical contact, and at minimal risk of being apprehended.

Put simply, the purpose of the alternative enforcement operations is to halt the ongoing committal of the offense, even if no perpetrator has been arrested and interrogated. Can restricting access, filtering search results, and removing a website from its host server (if that server is located in Israel) actually be efficient in preventing the ongoing committal of the offense? The question of the efficiency of the alternative enforcement means was discussed by the Knesset Constitution, Law, and Justice Committee during its consideration of the Powers Law. The issue also arose during the court hearings regarding the first applications submitted under the terms of the Powers Law. I shall discuss this aspect in more detail.

Critics of the alternative enforcement perception regarding cybercrimes raise two arguments, among others: Firstly, restricting access to particular content – for example by filtering it out of search results or by blocking access from a specific country – does not prevent users accessing the address by proxy, using a mediating agent. Secondly, the owner of the blocked site may rapidly establish a new domain in its place, thereby quickly regaining connectivity.

Regarding the first argument, there is no doubt that surfing by proxy permits the circumvention of access blocking based on an order granted to internet access suppliers in Israel.[8] However, this does not negate the justification of using these means in order to confront criminal offenses committed by means of “publication.” The reason is that a substantial portion of offenses of expression were intended for publication to a random audience, or one with a limited level of interest. In offenses committed by means of publication from an individual to the masses, such as the forwarding of an advertisement for prostitution services, and as in other offenses – including incitement to violence, incitement to racism, praising terror acts, degrading sexual publications,[9] and so forth – the goal is to reach as wide and non-specific a target audience as possible that is liable to be influenced by the publication. For such a target audience, blocking access or filtering search results will certainly secure the relatively effective outcome of reducing exposure to the prohibited content. The reason for this is that at least part of that target audience will not feel a particular need to search for the specific content by circumventing the technological mechanisms. Conversely, in the case of two persons involved in a criminal exchange, such as two persons jointly planning by means of internet communication to commit a specific criminal act – the communication is between individuals, between two persons interested in communicating with each other exclusively, and who will therefore be able to overcome technologically inefficient blocking mechanisms.

Turning to the second argument: it is indeed true that as long as the director or owner of the website containing prohibited activity has not been arrested, they may ostensibly reestablish the site under another name. However, the reestablishment of the website – even if it is simple in technical terms – requires the regaining of the clientele and recouping status in the relevant market, including the trust of potential customers that the proposed criminal serve is “high-quality” and “reliable.” Since the name of the game is the level of exposure of the website, the process of gaining customers is the most important aspect for the website director or owner. Moreover, when the relief is the removal of content (if the site is hosted on an Israeli server), rather than restriction of access, the information uploaded to the website is liable to be deleted, or access is liable to be denied to the website operators. Thus reloading the website content is also liable to prove problematic.

***

In conclusion, the Powers Law enables the law enforcement authorities to apply a new tool for coping directly with prohibited content and publications in the online domain. This tool creates an alternative enforcement track, alongside classic criminal enforcement, reflecting the understanding that the legal, technological, and architectural characteristics of the online domain require an effort to halt the ongoing offense, separately from the question of the possibility to locate, question or prosecute the perpetrator of the offense. Action to prevent the ongoing committal of an offense is not unique to the online domain, and may also certainly be appropriate in the physical domain, since one of the functions of the Israel Police is not only to investigate crime, but also to prevent it.[10] By way of example, the Restriction of the Use of a Place to Prevent the Committal of an Offense Law, 5765-2005 grants powers to close a physical place containing criminal activity of various types, including offenses in the fields of prostitution, drugs, copyright law, trading in content violating copyright, and so forth. However, in the physical domain there is usually an overlap between the criminal investigation and the action to prevent the ongoing committal of the offense. In the online domain, by contrast, it is certainly possible that the action to halt the ongoing committal of the offense will be undertaken even if the prima facie perpetrator has not been located and questioned.

The alternative enforcement actions (blocking access, filtering search results, and removing content when the server is located in Israel) are intended to create disruption in the committal of the offense, thereby impeding its perpetration. Impeding the process of committing and realizing an offense removes the attractiveness of the offense and effectively, in economic terms, increases its cost and thereby renders it less appealing to the perpetrator. The argument that the disruption is not hermetic and the impeding is not total should not lead us to the conclusion that this approach is not to be employed. As with any law enforcement method, there is no magic solution and no single move that can completely eradicate an undesirable phenomenon. Law enforcement is an arduous and ongoing process that entails many achievements (and, perhaps, failures) along the way. Nevertheless, it is valuable to continue actions in the legal sphere to disrupt the circulation of illegal publications in the online domain, provided that such actions are undertaken in a balanced manner, while avoiding over-generalization liable to cause disproportionate damage to the freedom of expression of website directors and the freedom of use of internet surfers. Needless to say, the actions in the alternative sphere do not negate actions in the class criminal enforcement sphere. Both tracks may be employed simultaneously, since they serve different goals: the former focuses on the offense, while the latter focuses on the prima facie offender. Together, the two tracks seek to reduce the attractiveness of the offense – but each one concentrates on a different variable in the equation.