High Court says virus mass surveillance can’t continue without Knesset oversight

In temporary injunction, justices give deadlocked parliament until midday Tuesday to establish Subcommittee on Clandestine Services — or stop tracking Israelis’ movements

Supreme Court Chief Justice Esther Hayut at a court hearing on the Shin Bet's new emergency powers to track Israelis' movements using their cellphone location data to help combat the spread of the new coronavirus, March 19, 2019. (Olivier Fitoussi/Flash90)
Supreme Court Chief Justice Esther Hayut at a court hearing on the Shin Bet's new emergency powers to track Israelis' movements using their cellphone location data to help combat the spread of the new coronavirus, March 19, 2019. (Olivier Fitoussi/Flash90)

In a dramatic decision, the High Court of Justice said Thursday that it would shutter the government’s new mass surveillance program if Israel’s parliament fails to establish parliamentary oversight over it within five days.

On Thursday, Israel’s secretive Shin Bet security service was ordered to begin tracking the movements of Israelis in an effort to keep tabs on the spread of the new coronavirus through the population. The tracking, done through the location data of Israelis’ cellphones, aims to alert and order into quarantine people who, in the previous two weeks, were within two meters for 10 minutes or more of someone who turns out to have the virus.

The new measures use cyber tracking technology previously only permitted for use in surveilling terror suspects.

Rights groups and political activists have panned the Likud-led government for instituting the policy, noting that the continuing political deadlock in the Knesset has prevented the establishment of parliamentary committees to oversee the unprecedented new surveillance powers.

The court’s decision on Thursday acknowledges the government’s claim that mass surveillance is a necessary part of the broader effort to slow the spread of the virus. But it seems geared to force a choice on the political echelon between the battle against the virus and the political machinations that have prevented the establishment of Knesset committees over the past week.

People run near the beach in Tel Aviv on March 19, 2020 (Avshalom Sassoni/Flash90)

Several groups appealed to the High Court this week arguing that such a sweeping and invasive program required oversight by the Knesset.

Thursday’s injunction accepted the argument, but gave the politicians five days to set up the committee before the program must be closed down.

“If the Knesset does not establish the relevant committee to enable parliamentary oversight of these [emergency] ordinances, no use can be made of the powers granted in them [after Tuesday at noon] and until a different decision is made,” the ruling reads.

In other words, if the Knesset fails to establish the parliament’s Subcommittee on the Clandestine Services to oversee the Shin Bet’s actions, the surveillance must be stopped.

The three-judge panel was led by Chief Justice Esther Hayut and included Deputy Chief Justice Hanan Melcer and Justice Noam Solberg.

Illustrative: Prime Minister Benjamin Netanyahu, Shin Bet chief Nadav Argaman (2nd-R) and National Security Adviser Meir Ben-Shabbat hold consultations on fighting in the Gaza Strip at an unspecified security facility in central Israel, February 24, 2020. (Government Press Office)

The decision allows the Shin Bet to continue tracking the movements of Israelis over the next five days and to identify those who came in contact with known virus carriers — but forbids the Israel Police from acting on that information.

The Shin Bet’s new powers “will be applied during this period only for the purpose of locating those who were in the presence of individuals positively diagnosed by a laboratory test with the novel coronavirus, and only according to the classified regulations that were presented to us — at the petitioners’ agreement — with only one side present, and which were approved by the attorney general,” the injunction said.

In the meantime, “no use can be made of the powers granted by the [emergency] police ordinances,” the injunction added, explaining that the government had yet to establish enforcement rules for the police as required by the criminal code.

Israel has introduced a series of sweeping restrictions since the coronavirus outbreak began, requiring all Israelis returning to the country to self-quarantine for 14 days and barring foreigners. It also shut schools, cafes, malls, gyms and more.

On Tuesday, widening the restrictions, the Health Ministry told Israelis not to leave their homes or visit parks and beaches, with exceptions made for essential needs, like food shopping, medicine shopping, medical care and work, and on Thursday Prime Minister Benjamin Netanyahu announced that authorities would begin taking legal action against those who leave their homes in violation of the directives.

The Health Ministry announced Wednesday it had begun using the Shin Bet’s mass surveillance tools to retrace the movements of coronavirus carriers and had already informed 400 people in contact with them that they must enter quarantine. With the Knesset closed, and committees unstaffed, the digital surveillance is being utilized without parliamentary oversight.

As of Thursday evening, there have been 677 confirmed coronavirus cases in Israel, six of them in serious condition.

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