privacy at war – summary of second webinar

Second Webinar: Memory and Commemorative Aspects

Background

In late 2023, Future Privacy Forum’s Israel Tech Policy Institute held two webinars examining aspects of privacy at wartime. 

This post is a review of the second session.

In the present information age, we leave many digital traces behind us – this is part of our daily lives. Even extreme events such as October 7 leave multiple digital traces from a variety of sources – as detailed as they are shocking. In the second webinar, we focused on the dilemmas of privacy vs. the desire to remember and commemorate. We sought to examine and offer practical solutions that would help strike the delicate balance between the personal and national need to document the event as a whole, as well as private individuals within it, and the need to protect people’s privacy. 

What follows is a summary of the main points. See below for the full conversation links to presentations. 

The series is facilitated by Adv. Rivki Dvash, a senior fellow of the FPF Israeli Tech Policy Institute. 

Memory for Perpetuity

Prof. Havi Dreifuss, Department of Jewish History, Tel Aviv University, Head of the Center for Research on the Holocaust in Poland, Yad Vashem International Institute of Holocaust Research. 

Link to presentation. 

I will discuss how historians cope with the challenge of preserving and perpetuating the memory of traumatic events. Different historians make different decisions. In making them, they are guided, beyond the study of history, by the need to respect the victims and the need to find ways to mediate difficult content to the public—an issue that is, of course, highly relevant to recent events. 

For example, my last book dealt with the final months of the Warsaw Ghetto. I wanted to focus on the Jewish public during the uprising, rather than on the uprising itself or the fighters involved, the story of those last remaining 50,000 Jews is horrible. Some were burned alive; others were executed with extreme violence. 

When I started writing, it was clear to me I had to talk about the violence, because it was part of the story of the suppression of the uprising. I encountered very difficult testimonies and had to consider how to integrate them into my book in a way that would not deter or offend readers. For example, part of the story of the Warsaw Ghetto is that people were trapped in houses that were ignited and burned alive, and there were highly detailed descriptions of that event. These testimonies were difficult to read even before October 7, but now I must consider who may be exposed to them and how this might affect them. Should I present those descriptions? They are a very important part of the story – how can they be told?

I decided to provide a general description in the main text and present the entire testimony in the footnotes. The same was done with a testimony presented in the webinar presentation that described in detail how a person found 60 bodies, including those of children known to him, as well as with testimony about a horrific rape. Some said this solution was inappropriate because the eye naturally wanders down to fully read the testimony. Even in retrospect, I am unsure whether I made the right decision. 

Another solution proposed was to place all the difficult testimonies in an appendix at the end of the book. However, I feared this would become an unreadable appendix of horrors and decided not to adopt this solution. 

The dilemma was related not only to textual sources, but also to visual ones. There is a sequence of photos – I’ll talk only about the first. In the photo, we see a group of Jews taken out of their shelter. What happened then is that the men and women were undressed, and the women were subjected to an intimate, very brutal search – and everything was photographed. When I started writing, it was clear to me that I had to include one of the photos: in it, you can see a young woman undergoing this horrible search – and it’s a very powerful photo. Only in the last stages of production, and after a thorough discussion with colleagues from Yad Vashem, I decided to protect the woman’s privacy and describe the scene in words, and to refer the readers to the photo’s archival source. 

The reason for that was my assumption that we are all prone to error. Had the photo been included in the book and this had been considered a mistake – then this is a terrible mistake: that miserable woman would have been exposed to the eyes of so many people. On the other hand, had the mistake been in the other direction, and it was needed to include the photo, and this was not done; this is a mistake one can live with. One of the criticisms against that decision was that this woman remained “buried” in the archive, with nobody to see her or know about her fate because a picture is stronger than a thousand words. I believe the decision here is far from straightforward; rather, it reflects some of the dilemmas historians deal with. 

Other approaches to anonymization exist, such as using an acronym or pseudonym for the people we refer to. 

When discussing the human dignity of the victims, matters become more difficult when dealing with a small group. Even if the victim’s name is not disclosed, the people in the small community will always know who he was. For example, when writing a book (still in progress) on Ultra-Orthodox Jews in the Holocaust) a relatively small and closed community), there is a description of terrible violence and torture and physical, psychological, and sexual humiliation of both Ultra-Orthodox and non-Ultra-Orthodox leaders that shatters and paralyzes the community and may explain its conduct later. So obviously, we need to tell the story, but on the other hand, we’re talking about the rabbi of Community A and the cantor of Community B – we know who they are, and they have a family and may have living descendants. So how do I tell the story without shaming that person? What do we do with the visual documentation? The visual documentation is part of the humiliation, and making it public makes us accomplices – but the story itself is important. 

Now, in the aftermath of October 7, we find ourselves facing the same quandary. If we tell the story, we pay a price, but we can’t not tell the story, because it matters so much. There are no good answers. I can only share the dilemmas faced by historians. 

Following October 7, together with the aspect of the victims’ dignity, the question of mediation arises. People who have known the ghetto have no need for accurate visual or verbal descriptions. Metaphors are enough for them to realize the extent of the horror. Before October 7, I thought we must talk very concretely about the events of the Holocaust, that we need to explain what it means to be burned alive and be precise about it. And then October 7 happened. What do we do with this now? When facing the public, how can we tell which terrible events have become etched in their minds? The information is so rich, clear, and visual. If information is revealed about something concrete that happened, it is easy to determine the victim’s identity. How do we mediate this when we’re all still deep within that crisis?

When it comes to the Holocaust when mediating with the younger generation, they used to say things like, have no fear; it happened long ago and in a different reality, when the Jewish people had no state of their own. Obviously, October 7 is not the Holocaust, and Hamas are not the Nazis, but we’re still in a deep crisis. 

Some of the questions raised also referred to the museology and archiving of the Holocaust and how they can trigger readers or visitors, particularly at this time. For example, those who visited the Holocaust Museum in Washington know that when the contents on display there are very graphic, they are located behind some kind of barrier, and you have to bend and make an effort to see them. Will we still display exhibits from the Holocaust in the same way, or should we be more careful because of the new triggers created after October 7?

Part of coping with these dilemmas is discussing them in the way we have done in this webinar, hoping this would help scholars and practitioners mediate these difficult materials in the future. 

The Challenges of Documentation and Preservation

Adv. Noa Diamond, clinical legal instructor, Privacy Clinic, Buchmann Faculty of Law, Tel Aviv University.

Link to presentation.

October 7 was followed by a tremendous awakening of civil society, among other things, due to the governmental void. The civil initiatives and projects dealt with a very wide range of issues. As they were being established and during their activity, extensive and highly sensitive information was gathered—sometimes of the kind that is normally held by the state rather than by private entities. 

Following queries we received on issues of privacy and copyright, Prof. Birnhack of Tel Aviv University summoned a group of legal experts – currently, thirty members – who have provided preliminary counseling in these areas to NGOs and private initiatives. 

Most initiatives needed help in addressing issues of privacy and thinking about their privacy design, and formulating relevant documents for their website or app. We soon identified a specific and unique type of projects – documentary projects, which required a different approach since they involved unique privacy and copyright issues. These projects started appearing shortly after October 7, and today there are several dozens of them. Some of them merged into a central forum, which serves as a hub for joint thinking and collaboration. Today, there is talk about regulation of the documentary efforts by the state, but we will focus on private projects. 

The documenters hail from various professions: documentarians, historians, archivists, researchers, legal scholars, and therapists. The goals and methods of documentation are just as diverse: documentation for historical research, artistic documentation, and documentation for commemoration or propaganda purposes, to be made available for public use. The objects of documentation are likewise diverse: survivors of the Re’im (Nova) music festival, evacuees from the communities bordering Gaza, families of the deceased and hostages, soldiers, police officers, and members of the Disaster Victim Identification organization. The materials are rich and varied. Some have already been broadcast in the media or disseminated on social media, and some are new. They include filmed or recorded interviews, WhatsApp correspondences, children’s drawings, and self-films. Some of the documenters intend to share their materials with the public, and some collect them to preserve the memory and historical documentation without intending to share them publicly, at least not right now. 

As opposed to the historical documentation we discussed in the previous section (Prof. Dreifuss presentation), these are very recent events that are highly traumatic—the people documented are often still struggling with them. Moreover, the event is still ongoing, and that, too, needs to be considered. 

The first important issue raised was consent. Consent is more important in this than in other privacy contexts, where it is also relevant, of course. This is because, in many cases dealt with by the documenters, the person being documented is experiencing a loss of control as a result of the complete trampling of the victims’ human dignity. During the documentary work, it is important to help these subjects – as much as possible – regain control of their selves, their information, and their story. Control over where information is going and who is exposed to the materials. 

The Privacy Protection Law provides protections related to situations of lack of consent. However, we recommended that the documentation projects prefer consent rather than rely on those protections. We recommended they apply a moral heuristic by placing themselves in the subjects’ “shoes”, and then think about the right thing to do. We’re talking about highly sensitive issues and very difficult personal moments, including stories about severe sexual assaults. While the subjects often want to remain anonymous, this can clash with the documenters’ desire for accurate documentation. It is therefore important to enable flexible anonymity, that is, to enable people to choose when and where they want to remain anonymous without being pressured to disclose details they don’t want to. 

Another important issue is WhatsApp chats – one of the major source materials for many documentation projects. The law allows using these correspondences when one party consents. Do we want one of the correspondents to be able to share WhatsApp correspondences with a large group without broader consent? We recommend trying to obtain broad and detailed consent from as many group members as possible. 

Two issues discussed in brief:

• Minors: Beyond the need to obtain the parents’ formal agreement, we must attend to the issue of minors’ right to be forgotten. What happens when they become adults and find that someone has decided, on their behalf, to commemorate their very private and very sensitive story in a publicly accessible archive or documentation project?
• Cyber security: Given the significant increase in cyber-attacks, when collecting this important and sensitive information, thought must be given to its protection. 

One challenge in advising the documentation projects was “privacy literacy”. Although the project leaders had a healthy intuition regarding cases where privacy issues arose, we needed to train those who collected the information and obtained consent and highlight the importance of obtaining the subjects’ consent. On the one hand, it was important for us to be precise, legally speaking, and on the other hand, we tried to avoid legalese, which could be very tiresome and cause users to neglect principles of privacy protection. 

Given the wide variety of project types, materials, subjects, and issues, as presented above, we came up with flexible solutions to enable each project to find and adapt solutions for its needs. In addition, we tried to predict future developments because the projects currently use various materials for uses currently defined, but these uses may change in the future, and people may want to use the materials for alternative purposes – this, too, needs to be considered right now. 

Following a question from the audience about documentation in the public spaces of the affected communities, which include the documentation of destroyed houses and sometimes private items visible among the ruins, you should note that the Privacy Protection Law distinguishes between photography in the private and public domain. To answer the question, the specific case needs to be examined. The Supreme Court has already ruled that when deciding the question of whether a domain is private or public, the context is highly relevant. Therefore, even if we are in a public space, but the camera captures a private scene, we must protect its privacy. 

The presentation includes a website link summarizing the solutions for documentation projects. A document summarizes the relevant legal principles. We also provide modular consent forms for different stages and parts of documentary projects. 

Platforms as Memory Capsules

Yarden Amir, Academic Relations and Digital Outreach Specialist, Israel Internet Association (ISOC-IL). 

The presentation includes links to Amir’s manual and additional information from the Israel Internet Association. 

The webinar is held at a time when we’re all required to cope with a complex emotional and practical reality. The challenges we now face are not completely new to our private and social space but are now at the center of attention, particularly due to the events’ suddenness, intensity, and multiplicity. 

These issues have arisen from the moment we began to be present and gather information online, and the Internet Association is active in promoting research studies and sharing information with the public through manuals and guideline summaries regarding this issue. 

On October 7, however, many communities and families in Israel suddenly had to cope with unexpected loss. Realizing that they would need concrete and available information, we decided to create a practical manual based on in-depth research so that whoever needed that knowledge could access it. We understand that as they cope with deep sorrow, those communities and families are also required to perform certain actions involving pain, particularly when it comes to managing digital memories.

When discussing the digital age and the internet, we tend to treat the distinction between digital and physical space too dichotomously. We treat them as separate spaces, whereas their boundaries are blurred in practice. In practice, our identity exists in both spaces almost indistinguishably. This “philosophical” introduction is designed to lay the ground for the understanding or claim that while our digital presence uses technology and is accumulated in cyberspace, it is an integral part of who we are today as social beings in the 21^st century.  

Our online presence enables us to gather huge amounts of information. The number of online services we harness for our daily needs is tremendous. With that in mind, we need to realize that in the context of the present catastrophe, many victims – particularly young adults, for whom the web is one of the main spaces where their identity is shaped and articulated – have left behind them a trace of information and memories, accessible and manageable by tech companies. 

In certain cases where the information is accessible, the question of privacy becomes critical. On the one hand, those who have lost their loved ones feel the need to access the information and gather all the bits and pieces left behind, whether for private mourning or for community commemoration. On the other hand, we have the question of the consent and the will of a person no longer with us. 

We need to understand something about the basic concepts central to this discussion and the various options available at the platform level. Whereas in the past, personal objects and items of someone we have lost, such as albums or letters, could be used by the mourning community to commemorate them, in the digital age, they have been converted into code: photo albums have become files stored in computers, hovering in clouds and saved in social media, and postcards and letters have been replaced by virtual chats. 

So how can we characterize the information we accumulate in cyberspace? We can use expressions such as digital remains, digital heritage, digital estate, or digital assets. These terms appear to overlap, but each has its own connotations and premises. For example, terms such as “assets” or “estate” are informed by a property perspective, assuming the information is inheritable. In their recent study on the fate of personal data after death (2023), Birnhack and Mors explain that this assumption is too broad and, therefore, decided to call those digital remains “digital memories” – the wealth of information, profiles, photos, and files we store in the various platforms of cyberspace. 

We need to be aware of the policies of the various platforms, understand their differences, and understand the various functions they enable. Since the use of digital memories is not regulated in Israeli law, we are left at the mercy of the platforms, particularly when handling information about us post-mortem. 

Significant differences exist between the platforms (see presentation for their tabulation). All enable to erase accounts. To erase all contents, including the username, you must contact the company directly and usually present a death certificate or other proof. Some platforms also enable manual erasure or erasure by a legacy contact. Legacy contact is an important term you need to be familiar with in the context of digital memory management. A legacy contact is a designated individual who is assigned by the used responsible for the account of the deceased. This option is currently available only in part of the platforms. Meta (Facebook) was the first to allow it, followed by Apple. The designation of a legacy contact is not an emotionally convenient or pleasant action, but it can help us – and mainly our relatives – to manage our virtual information post-mortem. 

Unlike social media platforms, Microsoft does not provide an interface for appointing a legacy contact but allows requests to remove accounts or obtain access in the case of death through legal channels only. Otherwise, access to a Microsoft account will be possible only if we know the passwords of the deceased. If Microsoft is not contacted and the account remains dormant for two years, after which the company will shut down the account itself. This policy of closing inactive accounts is common. 

X (Twitter) does not enable external account management or appointing a legacy or commemoration contact. According to the platform’s current policy, inactivity for thirty days leads to the erasure of the account, loss of username, and blocking all access to the account. This approach is a bit unusual. 

The function of memorializing an account exists in some social media platforms, most prominently Instagram, Facebook, and LinkedIn, that enable to turn our profile into a memorialized one where family and friends can share memories of the deceased. Technically, they will add a sign to the username to indicate that this is a memorialized account. The platform will also treat the profile differently. For example, it will not offer it as an option for adding a new friend (e.g., “People You May Know”) and will not provide birthday reminders. Thus, the account turns into a kind of space where you can cherish the memory of the deceased. 

These are some of the ways platforms have suggested to deal with the accounts of the deceased. However, the more difficult dilemma is where we have direct access to the accounts (thanks to access to the device or familiarity with the passwords to the networks of the deceased). Do we have the right to use these accounts and the information in them? What do we need to do in order to respect the privacy of those who have not decided that question themselves?

Birnhack and Mors’s studies have revealed fascinating insights. One issue that has preoccupied privacy researchers is the so-called “privacy paradox”. People state they care about privacy, but in practice, their behavior suggests they do not: they give away personal information easily, do not protect their private data, and more. Since the issue of digital memories embodies questions of post-mortem privacy, they also sought to examine whether this paradox outlives us. In other words, are users’ statements about the importance of privacy for them even after death accompanied by relevant actions, such as protecting accounts using a strong password or sharing passwords with family members? As the presentation reveals, they showed that the privacy paradox is reversed after death. This means that people who were interested in enabling access to their accounts to their loved ones have failed to take the actions needed to enable such access, in practical terms, their wishes might not be realized since their accounts would remain locked and their information out of reach. 

One last issue is the principle of continuity. This is, in fact, the answer to the question of what needs to remain private or what should become public. Which information can we access, morally speaking? The participants in Birnhack and Mors’s study indicated that what used to be private or public should remain private or public. 

If a person’s control over their privacy is important, we would like to maintain it even after death. In Birnhack’s (2016) “Circles of Privacy”, he describes privacy as a series of concentric circles of disclosures based on the social context: some information will be shared with a loved one, other information will be shared with our physician or insurance company, but not with a government authority. Skipping from one circle to another against the individual’s wishes is defined as a violation of privacy. 

The privacy of the deceased is not regulated in legislation. Therefore, we approach it from a moral perspective that emphasizes the dignity of the dead. Therefore, I will leave the question of retaining the control of privacy even after a person’s death as an open one.