By Devin Sullivan
April 24, 2023
After almost two years, the U.S. State Department finally complied with a Freedom of Information Act (FOIA) request filed by EFF and released their communications regarding the censorship of Leila Khaled, a Palestinian rights activist. The records show that the State Department ultimately resisted pressure to urge the censorship of protected expression.
The FOIA request pertained to a 2020 incident in which a San Francisco State University (SFSU) professor scheduled an academic panel to include Khaled, who participated in two plane hijackings 50 years ago and is associated with the Popular Front for the Liberation of Palestine, a group on the State Department’s list of designated terrorist organizations. However, Zoom, YouTube, Facebook, and Eventbrite effectively censored the SFSU panel by refusing to provide their services to the event as they had previously promised. The shutdown came after a pressure campaign led by the Lawfare Project, who argued to the platforms that they would be violating federal anti-terrorism laws by providing services to an event that featured Leila Khaled.
To surface whether the federal government communicated with these platforms about the Khaled event, EFF requested multiple records under FOIA. The requests included any and all communications or records of communication between the State Department and its subsidiary agencies with Zoom Video Communications, Facebook, Inc., YouTube LLC, and Eventbrite pertaining to Leila Khaled from June 2019 until the present. EFF also requested any and all internal records that discuss “material support of terrorism” and/or 18 U.S.C. 2339(A) in relation to Leila Khaled.
When the records request was not timely processed, we filed a lawsuit against the State Department to enforce FOIA. That lawsuit has now been resolved and the State Department has released responsive records—though many are highly redacted. The records EFF received confirm that the State Department ultimately made the correct call—that despite significant external and internal pressure, it declined to urge the online services to take any action, citing the First Amendment protections for the speech.
The records reveal that the external pressure came from the Lawfare Project (a non-government-organization not to be confused with the Lawfare blog). Benjamin Ryberg of the Lawfare Project requested that the State Department issue a statement regarding Khaled. Ryberg wanted the State Department to clarify that just by hosting Leila Khaled, SFSU and the tech platforms would be providing material support to a Foreign Terrorist Organization. In one of the released emails, Benjamin Ryberg reached out to Elham (Ellie) Cohanim, a Trump-appointed Deputy Special Envoy to Monitor and Combat Ant-Semitism at the State Department.
Cohanim’s direct superior, another State Department official, the Special Envoy to Monitor and Combat Ant-Semitism, Elan Carr then began lobbying his colleagues within the State Department to aid the Lawfare Project’s pressure campaign to censor Leila Khaled at SFSU. In an email to his fellow government employees, Carr explained that the Lawfare Project believed, “that their cause would find assistance from some sort of statement from us that a terrorist designation of an organization applies to all members of that organization.” He then asked, “do we have legal or pre-cleared language like that? Is this something you CT would consider?” The “CT” mentioned in Carr’s email stands for “Counterterrorism” as Carr was corresponding with Hillary Batjer Johnson, the Acting Principal Deputy Coordinator for the Bureau of Counterterrorism.
Fortunately, Johnson, also a State Department employee, pushed back on the calls to pressure SFSU to deplatform Leila Khaled. In one email to Ellie Cohanim, Johnson explains, “just as a heads up, we aren’t able to do much regarding issues of free speech” but then offers to chat later.
A day later, Johnson recalls to someone with a State Department email (their name is redacted) what appears to be an in-person chat with Ellie Cohanim, who repeated the erroneous and unconstitutional view of the Lawfare Project. Thankfully, Johnson knew the law and asserted that Leila Khaled did in fact, “get the pleasure of the free speech argument.”
Although the State Department officials eventually did the right thing, the correspondence demonstrates why transparency is essential when dealing with governmental involvement in the private platforms’ content moderation decisions. As set forth in the Santa Clara Principles, “Special concerns are raised by demands and requests from state actors (including government bodies, regulatory authorities, law enforcement agencies and courts) for the removal of content or the suspension of accounts.” Indeed, the Santa Clara Principles include Principles for Governments and Other State Actors which provide that “Governments and other state actors should themselves report their involvement in content moderation decisions, including data on demands or requests for content to be actioned or an account suspended, broken down by the legal basis for the request.”
As EFF has written, government involvement in content moderation may justify legal claims against the government, and in more limited situations, the platforms themselves.
The correspondence secured by this FOIA request demonstrates that there are government officials who want to pressure companies to engage in censorship, but also government officials who respect free speech concerns.
You can read the full correspondence at the link below:
