It’s getting harder for the government to secretly flag your social media posts

Doughty wrote, “Defendants ‘significantly encouraged’ the social media companies to the point that (the companies’) decisions should be considered government decisions.”

Doughty’s ban, now on hold at the White House’s urging, attempts to set boundaries of acceptable behavior for state IRUs. It provides an exemption for officials to continue to inform social media companies about illegal activity or national security concerns. Emma Llanso, director of the Free Speech Project at the Center for Democracy and Technology in Washington, D.C., says that leaves many questions because the line between well-thought-out public safety protections and unfair suppression of critics can be thin.

The EU’s new approach to the IRU also seems compromised to some activists. The Digital Services Act (DSA) requires each EU member state to appoint a national regulator by February, which will accept applications from government agencies, non-profit organizations, industry associations or companies that want to become trusted officers who can report illegal content directly on Meta and other medium and large platforms. Reports from trusted employees must be dealt with “without undue delay” under penalty of up to 6 percent of the company’s global annual sales.

The law aims to make the IRU’s inquiries more specific by designating a limited number of trusted organizations with expertise in various areas of illegal content, such as racist hate speech, counterfeit goods or copyright infringement. And organizations will have to disclose annually how many reports they submitted, to whom, and with what results.

But the disclosures will have significant gaps because they will only include requests related to content that is illegal in an EU state, allowing reports of content marked solely as a violation of the terms of service to go unreviewed. While tech companies aren’t required to prioritize reporting content flagged as infringing, there’s nothing stopping them from doing so. And platforms can still operate with unregistered trusted employees, essentially preserving today’s obscure practices. The DSA does require companies to publish all their content moderation decisions in the EU database without “unreasonable delay”, but the identity of the flagger can be withheld.

“DSA creates a new parallel structure for trustees without directly addressing existing problems with real-world trustees like the IRU,” says Paddy Liersen, a PhD student at the University of Amsterdam who is involved in the project that provides ongoing analysis of the DSA.

Two EU officials working on DSA enforcement, speaking on condition of anonymity because they are not authorized to speak to the media, said the new law is designed to ensure that all 450 million EU residents can take advantage of the trusted notifications option to send expedited notifications to companies that might not otherwise cooperate with them. Although the new Trusted Marker designation has not been developed for government agencies and law enforcement agencies, there is nothing to prevent them from applying, and the DSA specifically mentions online referral units as possible candidates.

Human rights groups are concerned that if governments participate in the trusted marker program, it could be used to suppress legal speech under some of the bloc’s more draconian laws, such as Hungary’s ban (currently under court) on the promotion of same-sex relationships in educational materials. Elishka Pirkova, head of global freedom of expression at Access Now, says it will be difficult for tech companies to resist the pressure, even if state coordinators can suspend trusted employees who act inappropriately. “It’s a complete lack of independent guarantees,” she says. “It’s very disturbing.”

A couple of years ago, Twitter banned at least one human rights organization from sending reports to its top-priority queue because it filed too many erroneous reports, a former Twitter employee says. But bringing down a government can certainly be more difficult. The Hungarian Embassy in Washington, D.C., did not respond to a request for comment.

Tomáš Berec, general manager of INACH, a global coalition of non-governmental groups fighting online hate, says some of its 24 EU members are considering applying for official trustee status. But they have concerns, including whether coordinators in some countries will approve applications from organizations whose values ​​don’t align with the government’s, such as a group monitoring anti-gay hate in a country like Hungary, where same-sex marriage is illegal. “We don’t really know what’s going to happen next,” Berech says, leaving room for optimism. “For now, they’re happy to be part of the unofficial trustee program.”