Amid NSO scandal, minister says wiretap laws must be ‘adapted to the 21st century’

Public Security Minister Barlev calls current legislation ‘old’; Knesset committee opens discussion on claims that police used Pegasus spyware to track civilians without oversight

Carrie Keller-Lynn is a former political and legal correspondent for The Times of Israel

Public Security Minister Omer Barlev attends a ceremony at the Israel Police National Headquarters in Jerusalem, September 5, 2021. (Olivier Fitoussi/ Flash90)
Public Security Minister Omer Barlev attends a ceremony at the Israel Police National Headquarters in Jerusalem, September 5, 2021. (Olivier Fitoussi/ Flash90)

Public Security Minister Omer Barlev instructed his ministry on Monday to reevaluate legal oversight of police wiretapping and search methods, amid fallout from explosive reports that police used the NSO Group’s powerful Pegasus software to obtain unfettered access to the phones of Israeli civilians, including those not suspected of crimes.

A wide range of parliamentary and civil society voices have called for an examination of the claims and for tighter oversight over police usage of phone-monitoring technology.

The Public Security Ministry oversees the police.

“I instructed the legal entities in the Public Security Ministry and my bureau staff to conduct an examination of the existing arrangements, including the Wiretapping Law and the search law,” Barlev said. “This is to examine the need to make adjustments, in order to be exacting and clarify the limits of what is allowed and prohibited in the use of advanced technological means for enforcement purposes. If necessary, my ministry will formulate a government bill, in coordination with the Justice Ministry.”

Barlev explained his directive by calling the existing laws outdated and not fit to address today’s technological capabilities.

“The existing legal arrangements regarding wiretapping and search operations as part of police enforcement operations are old,” said Barlev. “There is justification for examining whether to update the arrangements in light of the technological developments we have witnessed in recent years and for the adaptation of legislation to the 21st century.”

The police have repeatedly claimed that they have only used surveillance technology within the bounds of proper oversight and court orders, while not denying using NSO’s spyware, which was not known before the reports.

A branch office of NSO Group near the southern town of Sapir, August 24, 2021. (Sebastian Scheiner/AP)

The Hebrew-language business daily, Calcalist, which first broke the allegations that police use Pegasus to spy on civilians, has claimed that the police have employed the software extrajudicially. Additional media outlets, like Haaretz, have made claims that some judges responsible for granting police court orders are not always fully aware of the power of the tools they are enabling.

The Knesset’s Public Security Committee also met on Monday to discuss allegations raised against police use of Pegasus against civilians.

Committee chair MK Meirav Ben-Ari of the Yesh Atid party, as well as former head of police investigations MK Yoav Segalovitz (Yesh Atid), cautioned against jumping to conclusions.

“We have hurried within a week [of claims being raised in the media] to calling for an inquiry committee. Let’s take a second to check,” said Ben-Ari.

“There’s a difference between a claim, a conclusion, and carrying out an action [to address the initial claim],” said Segalovitz.

The former investigative unit head said that the current law has to date been sufficient for covering police action, although he did not rule out the benefit of updating the law.

“The current law provides for the current mission,” he said.

Ben-Ari plans to next call for a closed-door session with the police to understand in-depth “the process the police take to obtain a court order.”

Public Security Committee Chair MK Meirav Ben-Ari leads a session to discuss claims of the police’s use of Pegasus software, January 24, 2022. (Screenshot)

However, several experts invited by the committee claimed that the suite of current applicable laws regarding wiretapping and searches do not permit some of the activities claimed to have been committed by police. While the law does enable police to obtain a court order to secretly listen to conversations and to observe messages transmitted between devices, search laws prohibit a more thorough investigation of a phone, unless the suspected person was made aware and the suspect’s phone was physically provided to the police.

Haim Wismonsky, director of the state prosecutor office’s cyber unit, said that under the current law, “there is no authority to go into a phone and pull out its data, secretly… Secret search is not covered by the law.” Rather, he said, police need to obtain a search order from a court.

Tehilla Shwartz Altshuler, an expert in information age policy at the Israeli Democracy Institute, said that “there’s no authorization in the law.” She said the attorney general has at times interpreted the law to bridge between the outdated 1979 Wiretap Act and today’s capabilities, a process that is common.

“Until the law is legislated, it’s prohibited to use these technologies,” said Shwartz Altshuler.

Also on Monday, the Knesset’s House Committee voted to re-establish a legally-mandated joint committee to receive reports on security establishment usage of wiretapping. The committee will have 6 members and be headed by MK Eitan Ginzburg (Blue and White).

The joint committee will be formed in line with the 1979 Wiretap Act, which requires the prime minister or defense minister to annually report to a joint committee of the constitutional and foreign affairs and defense committees “on the number of permits issued” to listen in the interests of state security.

A source familiar with the matter said that since the committee is required for annual reporting, previous Knessets have similarly formed it, and “this time it came out close to the reports about the police.”

Although the committee’s mandate is currently focused on limited oversight in line with the 1979 law — receiving annual reports — its powers may expand in light of the news reports. “But at the moment there’s no reference [to expanding the mandate to investigate the claims],” the source said.

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