A/HRC/32/38 flagging mechanisms to report content as a violation of the site’s [terms of service]”.39 Such practices raise the prospect that States may rely on private terms of service to bypass human rights or domestic law norms against content restrictions. 54. The work of private censorship is complicated by the sheer volume of complaints and flagged content that intermediaries identify on a daily basis. Large platforms may also outsource content moderation, creating even more distance between content moderators and internal policymaking decisions, and exacerbating inconsistencies in enforcement. Intermediaries that operate in a diverse range of markets inevitably face “complex value judgments”, issues with cultural sensitivity and diversity, and “difficult decisions about conflicts of law”.40 Design and engineering choices 55. The manner in which intermediaries curate, categorize and rank content affects what information users access and view on their platforms. For example, platforms deploy algorithmic predictions of user preferences and consequently guide the advertisements individuals might see, how their social media feeds are arranged and the order in which search results appear.41 Other self-regulatory measures, such as “counter speech” initiatives to support anti-terror or anti-harassment messages,42 also affect the ways in which users might consume and process Internet content concerning sensitive topics. It remains an open question how freedom of expression concerns raised by design and engineering choices should be reconciled with the freedom of private entities to design and customize their platforms as they choose. B. Surveillance and digital security 56. State surveillance and corporate data collection and retention raise substantial issues of freedom of expression. For instance, how do States conduct surveillance activities with the cooperation of the private sector, and how does such cooperation have an impact on freedom of expression? What are the responsibilities of private actors when they discover that States covertly access Internet and telecommunications data transmitted or stored on their networks or platforms? What are the responsibilities of the private sector to protect security and anonymity online? 57. Digital communications and data transmitted or stored on private networks and platforms are increasingly subject to surveillance and other forms of interference, whether by the State or private actors. Unnecessary and disproportionate surveillance may undermine security online and access to information and ideas (see A/HRC/23/40). Surveillance may create a chilling effect on the online expression of ordinary citizens, who may self-censor for fear of being constantly tracked. Surveillance exerts a disproportionate impact on the freedom of expression of a wide range of vulnerable groups, including racial, religious, ethnic, gender and sexual minorities, members of certain political parties, civil society, human rights defenders, professionals such as journalists, lawyers and trade unionists, victims of violence and abuse, and children (see A/HRC/29/32). State capacity to 39 40 41 42 National Police Chiefs’ Council, Counter Terrorism Internet Referral Unit; submission of the Center for Technology and Democracy. Emily Taylor, The Privatization of Human Rights: Illusions of Consent, Automation and Neutrality, GCIG Paper No. 24 (2016). Submission of the Center for Technology and Society; Ranking Digital Rights. See, for example, Home Affairs Committee, Oral testimony of Anthony House, Google Europe, Middle East and Africa (2 February 2016). 15