The head of a Knesset committee denounced the government on Tuesday for bypassing the parliament and unilaterally approving a measure allowing security services to track carriers of the coronavirus and those in quarantine, in what he described as a “power grab.”
Attorney General Avichai Mandelblit responded to the allegation, saying that the decision to go ahead with the highly contentious measure — which allows mass surveillance of the Israeli public in a bid to halt the spread of the coronavrius — without parliamentary oversight was necessary due to the “urgency” of the matter, without elaborating.
Under the government’s decision, the Shin Bet security service was permitted to use the cellular phone data of carriers of the disease to retrace their steps and identify anyone they may have infected, while the Israel Police was tasked with using location data to ensure that people subjected to a home quarantine remained there.
As those technologies are generally used solely for counterterrorism operations, the proposal to use them against Israeli civilians garnered harsh criticism and deep concerns over privacy and civil liberty violations.
Yet despite promises by the government to include oversight by the Knesset’s Foreign Affairs and Defense Committee in the process, at roughly 1:30 a.m. the cabinet decided to instead pass the measure as an emergency amendment and cut out the parliament.
“The government approved — in the dead of night, in a power grab — emergency regulations, despite the fact that the Foreign Affairs and Defense Committee only started discussing the matter yesterday and was not able to hold the discussion in a serious way and complete it,” MK Gabi Ashkenazi of the Blue and White party, who chairs the committee, said in a statement.
“It is unacceptable to approve the use of such a measure in this way, with no parliamentary or public oversight,” he said.
Ashkenazi, a former chief of staff of the Israel Defense Forces, indicated the committee would have continued discussing the matter on Tuesday had the government not cut it out of the process.
Prime Minister Benjamin Netanyahu rejected the criticism, saying that a failure to enact the extraordinary measure immediately would cost lives.
“As the pandemic is spreading at a tremendous rate, delaying the use of these tools by even one hour could lead to the deaths of a great many Israelis, as occurred with the deaths of thousands in Italy and other places around the world,” the Prime Minister’s Office said in a statement.
“As the discussion in the Knesset’s Foreign Affairs and Defense Committee was delayed and could have taken many more days, Prime Minister Netanyahu acted quickly, together with the Health Ministry and attorney general, in order to allow the immediate use of the digital tools that can slow the spread of the pandemic in Israel and to save many civilians’ lives,” it said. The PMO added that the government’s approval for the contentious surveillance program will only last for 14 days, during which the Knesset can weigh in on it.
Mandelblit also responded to the allegations, saying that the move to bypass the committee was necessary as the formation of the new Knesset and its committees — following this month’s election — was delaying the process.
“When it became clear that the process would not be completed under the previous Knesset, and in light of the timing at which the proposal was brought for approval to the committee, and due to the great urgency in granting these powers, it was decided to instead go with an emergency regulation, which was approved last night by the government,” he said.
Mandelblit added: “The purpose of these regulations is to save lives in a time of emergency. It is as simple as that.”
It was not immediately clear why the government concluded that the Health Ministry could not make do with the tools that it had been using until now for another day or two to allow for parliamentary oversight.
Neither the Health Ministry nor the Prime Minister’s Office responded to a request for comment.
In recent weeks authorities in Taiwan and Singapore, among other countries, have used cellular phone data to ensure that citizens were abiding by required quarantine orders. The Israeli government’s surveillance program goes far beyond that.
The measure allows the Shin Bet to use phone data — notably which cell towers the device is connected to — in order to retroactively track the movements of those found to be carriers of the coronavirus in order to see with whom they interacted in the days and weeks before they were tested in order to place those people in quarantine.
The Shin Bet will relay the information to the Health Ministry, which will send a message to those who were within two meters (6.6 feet) of the infected person for 10 minutes or more, telling them to go into quarantine. Police would collect data related to overseeing quarantine orders, and monitor and enforce those orders.
In addition to removing Knesset oversight, the cabinet stripped away many of the phone tracking program’s restrictions that had been promised by cabinet ministers and the Shin Bet, which will run the operation.
The updated version of the order removed a 30-day limit on the program that Netanyahu had said would be put in place. Instead, the surveillance would continue until the government’s state of emergency ended — not after a fixed period of time — and the data that was collected would be saved for an additional 60 days after that in order to perform “an internal investigation of the efforts performed by the Health Ministry.”
This went against a claim by a Justice Ministry official who told Channel 13 news earlier this week that the data would be deleted immediately after people were informed of the need to go into quarantine.
The government decision — an amendment to a 2007 law regulating the collection of cellular data — allows police to collect location data on people in quarantine to ensure they are remaining away from others.
The amendment forbids the use of the data collected for any purpose besides the fight against the coronavirus.
“There will be no other use of the information, including for criminal proceedings,” according to the government decision.
In an irregular move, the head of the Shin Bet, Nadav Argaman, who rarely speaks publicly, released a statement on Tuesday morning in an apparent effort to reassure the country, saying the measure was meant to save lives.
“The Shin Bet is aware that this is a departure from its normal activities of thwarting terrorism, and therefore the matter was discussed and approved by the attorney general, and fixed oversight and control mechanisms were put into place over the process,” Argaman said.
The Shin Bet said the surveillance data it collected would only be given to one of two people: the director-general of the Health Ministry or the head of the ministry’s public health services.
“As the head of the Shin Bet security service, I want to make it clear that the sensitivities around this matter are entirely clear to me and that therefore I have only allowed a very small group of agency officials to be a part of this matter and that the information will not be saved in the Shin Bet’s databases,” Argaman said.
The ministers approved the measure via a telephone vote late Monday night and early Tuesday morning. There were no dissenters.
Critics have said Netanyahu’s caretaker government, which does not have the backing of a Knesset majority, should not be able to okay such sweeping and controversial measures. His rival Benny Gantz of the Blue and White party was handed the mandate Monday afternoon to form a new government, though it is unclear if he has support for a ruling coalition.
“We are in an exceptional period where, unfortunately, it is necessary to take exceptional measures to save lives,” Gantz tweeted on Tuesday morning. “However, it is forbidden to do so as a power grab and without oversight.
“Blue and White will insist that the Foreign Affairs and Defense Committee, as well as a special committee on the coronavirus, the Finance Committee and other committees, be set up today to monitor the processes and approve required regulations at this time,” he said. “The Foreign Affairs and Defense Committee must receive all the information about the surveillance procedures approved today. That’s the way it is in democracy.”
Netanyahu had announced in a televised address Monday evening that the government would be approving the measure.
“These tools will help us very much in locating the virus, locating those sick and stopping the spread of the virus,” he said as the number of infections in the country climbed to 298. It has since risen to 304, including five people in serious condition.
Saying ministers debated the issue for six hours on Sunday, Netanyahu said: “We asked for strict oversight on this so that it isn’t abused.”
“Israel is a democracy — we must uphold the balance between the rights of individuals and the public needs. And we are doing this,” he added.
The measure has faced criticism from human rights and privacy experts as effectively it means that any person in Israel could come under surveillance by the Shin Bet, an organization with no public transparency requirements.
In a statement Sunday, Avner Pinchuk, an attorney with the Association for Civil Rights in Israel, said the marginal benefit gained by tracking carriers of the disease and finding with whom they may have been in contact “does not justify the severe infringement of the right to privacy. The danger of COVID-19 is not only the virus itself, but the fear that as part of the efforts to overcome the danger, we will also lose our basic values as a free and democratic society.”
Tehila Altshuler Shwartz, a leading Israeli thinker on media and technology, told The Times of Israel that one of her main concerns stemmed from the fact that the Shin Bet was given responsibility for the program, rather than a more transparent organization.
The security service has limited oversight as it answers directly to the prime minister; unlike the police and other civil authorities, the Shin Bet does not have to request data from cellular service providers but instead has its own direct access to it through a 2002 law; and the agency is not subject to Israel’s freedom of information laws, meaning that whatever actions are taken with the data could remain secret.
“It is shameful that the attorney general approved this,” she said.
Altshuler Shwartz, a researcher at the Israel Democracy Institute, noted that a number of other bodies — the police, the Health Ministry or the military — that are more transparent and have greater built-in oversight systems could have been made responsible for the effort instead of the Shin Bet.
The phone surveillance proposal was one of the latest in a series of drastic steps taken by the government — including a major effort to keep people out of the public square — to combat the spread of the virus.
The underlying cellular data that the Shin Bet will use in the effort already exists — as part of a 2002 law giving the agency direct access to the information, rather than having to request it from cellphone companies — but is not generally accessible to the security agency. The proposal will allow the Shin Bet to use that information without requiring any additional authorization from courts or the government.
Until now, health authorities have relied primarily on interviews with patients in which they detail where they’d been and with whom they’d met in the weeks preceding their diagnosis.
The concern in the government that prompted the dramatic proposal is that as the number of people infected with the virus rises, it will eventually become impossible to interview everyone individually. By using an automated system, the issue is avoided.
Transportation Minister Bezalel Smotrich, generally seen as a critic of the Shin Bet, was one of four ministers who, along with a representative from the Justice Ministry, developed the protocols dictating the terms of what he admitted was an extreme measure.
“I can assure you all unequivocally: There isn’t and won’t be a ‘Big Brother’ in the State of Israel, even in the framework of an extreme event like what we are dealing with now,” Smotrich wrote in a tweet on Sunday, referring to George Orwell’s dystopian novel “1984.”
Smotrich, of the nationalist-right Yamina party, said he recognized it was an “extreme step” that he said was only justified as it would save “tens of thousands of lives.”
Times of Israel staff contributed to this report.