In 1st, prosecutors pull court evidence that was obtained via illegal use of spyware

Review finds sleuths illicitly pulled data from the computer of a suspect in a murder case; state attorney is monitoring issue after media allegations of misuse of NSO’s Pegasus

Illustrative: A man typing on a computer keyboard, January 24, 2017. (Flash90)
Illustrative: A man typing on a computer keyboard, January 24, 2017. (Flash90)

State prosecutors informed the Haifa District Court Monday that they were withdrawing some evidence in a murder case because it had been illegally obtained by police using spyware.

Though police had a court order permitting eavesdropping in the case, the ultimate use strayed beyond the confines of the order, prosecutors said.

They noted that this was the first time that evidence illegally obtained from spyware was found to have been used in a case since they began looking into police application of controversial surveillance methods, including using NSO Group’s notorious Pegasus software, amid media claims of abuse.

However, prosecutors said that the charges against the suspect will remain in place as there is enough evidence remaining to secure a conviction.

Defense attorneys have been informed of the development.

The police violation came to light during the state prosecution’s cyber unit’s review of a case in which three residents of the West Bank city of Tulkarem are accused of murdering two Arab Israeli brothers in April 2021.

Shafa Abu Hussein and his brother Salah, both in their 20s, were shot in their vehicle in a drive-by shooting in Tulkarem. They were both from the Arab Israeli city of Baqa al-Gharbiya.

Though police were granted permission to tap the computer communications of one of the suspects in the case, who has not been indicted, they also pulled data from the computer, an action not permitted by the court order.

“The same means carried out actions amounting to a covert search (copying information stored on the device), and this goes beyond actions amounting to eavesdropping,” prosecutors said.

It was on the basis of the obtained information that police were given another court order to carry out further investigation, which gleaned additional evidence that was used in the case and presented in court.

The findings from the cyber unit review were handed to State Attorney Amit Aisman, who then ordered the withdrawal of the evidence thus obtained.

Amit Aisman speakers during a ceremony at the Justice Ministry in Jerusalem, June 28, 2021. (Yonatan Sindel/Flash90)

In their announcement, the prosecutors noted that since February 2022, the State Attorney’s Office has looked into 27 cases “in which means were used to eavesdrop on communications between computers, which include intrusion into end devices.”

Probes so far have found that although investigators “have collected excessive information, which exceeds the limits of what is permitted in the framework of wiretapping,” no evidentiary or intelligence use was made of the material that exceeded the permissible limits.

“This is the first case in which evidentiary use of excess information collected unlawfully, as part of the use of spying tool, was revealed,” the prosecution said.

Last month, the Knesset’s Constitution, Law and Justice Committee announced that it would establish a subcommittee tasked with probing police use of Israeli-made wiretapping software Pegasus to spy on Israeli citizens by hacking their phones.

Persistent accusations have alleged that police have access to a watered-down version of Pegasus, known as Saifan, which reportedly allows police access to Israelis’ phones, including the ability to covertly listen to conversations.

The NSO Group logo is seen on a smartphone placed on a laptop keyboard. (Mundissima/Alamy)

In early 2022, the Calcalist newspaper reported, without providing evidence or citing sources, that dozens of high-profile Israeli figures — including former ministry directors, prominent business figures, and family members and associates of Prime Minister Benjamin Netanyahu — were spied on by police using the NSO Group’s Pegasus spyware without any judicial oversight.

Investigations by police and an interim report by Deputy Attorney General Amit Marari found Calcalist’s reporting to have been largely incorrect, with none of the 26 people supposedly hacked having actually been targeted by police.

Nevertheless, the report noted that the police had exceeded the bounds of warrants they had received to hack into phones on four occasions, and therefore had the potential to obtain information that was not legally available to them.

In those four instances, Marari’s report noted at the time, the police unsuccessfully attempted to hack into a phone, but obtained no information from the attempt. In two of those cases, police had a warrant to secretly hack and record phone calls, but not to hack into digital communications; in a third, the operation was carried out shortly after the warrant had expired; and in the fourth, police believed they had a warrant and later discovered they did not.

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