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High Court: Shin Bet surveillance of virus carriers must be enshrined in law

Justices say security service can’t continue to gather cell phone location data after Thursday, unless Knesset begins legislation process

A woman wearing a protective face mask walks past a clothes shop in Jerusalem on April 26, 2020. (Nati Shohat/Flash90)
A woman wearing a protective face mask walks past a clothes shop in Jerusalem on April 26, 2020. (Nati Shohat/Flash90)

The High Court of Justice ruled Sunday that the Shin Bet security service’s cellphone tracking of confirmed coronavirus carriers cannot continue unless the government anchors the highly controversial practice in law.

However, the panel of three justices, led by Supreme Court Justice Esther Hayut, granted the government the right to approve an extension of the tracking for the coming weeks, on condition that it begins the legislative process. In addition, the eventual law must allow journalists the right to protect their sources by preventing their cell phone data from being handed over to the Shin Bet, though the exception would be treated on a case-by-case basis, the court determined.

Over the past few weeks, the internal security agency has been working with the Health Ministry in a controversial program to retrace the movements of coronavirus patients by making use of the masses of phone and credit card data at its disposal, which it generally is only permitted to use for counterterrorism operations.

The court ruling came in response to petitions filed by rights groups against the tracking, which has been temporarily authorized under emergency ordinances as part of the campaign to curb an outbreak of the virus that has already claimed at least 200 lives in the country and infected thousands more.

Beyond April 30, when the tracking would next be up for re-approval,”there is a need to anchor the authority to do so within the framework of the appropriate primary legislation, for example a temporary order,” they wrote, meaning the law should have an expiry date attached to it.

The tracking program “severely violates the constitutional right to privacy, and should not be taken lightly,” the court said.

“The choice to use the state’s preventive security organization to monitor those who do not seek to harm it, without the consent of the surveillance subjects, poses great difficulty and effort must be made to find another suitable alternative that fulfills the principles of privacy protection,” the justices added.

A law formalizing the cell phone surveillance must include a clause that journalists diagnosed with the virus have a 24-hour window to ask for a court order against their phone details being given to the Shin Bet, in the interest of protecting their sources, the court said. Infected journalists would need to commit to personally notifying any sources they came into contact with over the previous two weeks before the diagnosis.

“Freedom of the press and the protection of journalistic sources is important in the days of a national crisis,” the judges wrote.

Supreme Court Chief Justice Esther Hayut, center, arrives with fellow justices at a court hearing on Prime Minister Benjamin Netanyahu’s decision to authorize Israel’s Shin Bet security agency to use cellphone location data to help combat the coronavirus, March 19, 2019. (Olivier Fitoussi/Flash90)

Petitions against the current tracking were filed by the Association of Civil Rights in Israel, the Adalah legal aid organization, right activist Attorney Shahar Ben-Meir, and the Union of Journalists in Israel. They claimed the tracking was harming basic rights of human dignity and freedom, while the state has argued that the measure is necessary to save human lives, Haaretz reported.

According to a Channel 12 news report Saturday, the program has been deemed a success, due to the quick identification of those who have been in contact with a carrier of the pathogen, though there is still hope that an alternative system may be found. Energy Minister Yuval Steinitz is heading a committee investigating the matter which, among other things, is looking at programs used by other countries to prevent the spread of the pathogen.

The Shin Bet has stressed that its powerful mass surveillance program is only being used for the purposes of fighting the pandemic. The security agency’s mandate is set to expire at the end of the month, but the report said it would be allowed to continue the program “until the end of the emergency,” without clarifying how that would be determined.

Under the government’s emergency regulations, the security service is not permitted to continue using the data after the program ends, though the Health Ministry is allowed to use the information for an additional 60 days for research purposes, presumably to retrace the path of the outbreak.

The tracking, which uses cellphone location data, credit card purchase data and other digital information, aims to alert and order into quarantine people who were within two meters, for 10 minutes or more, of someone infected with the virus within the past two weeks.

The Knesset Foreign Affairs and Defense Committee decided last week not to move forward with separate legislation allowing police to use phone tracking technology to enforce stay-at-home orders for quarantined individuals.

Blue and White MK Gabi Ashkenazi, who chairs the committee, said in a statement after the meeting that members of the panel had raised significant reservations to the wording of the bill that would have allowed the practice to continue, and that government representatives present agreed to “reexamine the wording of the [proposed] law.”

As of Sunday, at least 201 people have died of the coronavirus in Israel and 99 were on ventilators, according to Health Ministry figures. There have been 15,443 cases diagnosed in Israel and 6,602 have recovered from COVID-19, the disease caused by the virus.

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