Removing safeguards and oversight, cabinet okays mass surveillance to halt virus

Israel’s caretaker government amended and unanimously approved early on Tuesday a measure allowing security services to deploy advanced digital monitoring tools in an effort track carriers of the coronavirus, removing many of the safeguards and oversights that officials had said would be put into place to address widespread privacy concerns about the initiative.

The approval of the emergency measure bypassed the Knesset — a move Prime Minister Benjamin Netanyahu had said would not be done — after a subcommittee on clandestine services on Monday stopped short of approving the highly controversial surveillance program, pending additional debate.

Such tracking technologies, which in large part rely on data from cellphones, have principally been used by the Shin Bet security service in counterterrorism operations, and the prospect of directing them against the entire Israeli population has raised major civil liberties concerns.

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.

Video footage appears to show police officers in protective gear arresting an individual who allegedly violated a quarantine order in Tel Aviv, March 14, 2020 (screenshot: Twitter)

In Israel, however, 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.

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.

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 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.

Under the surveillance program, the Shin Bet will not be tasked with enforcing or monitoring the quarantine orders, but rather the Israel Police will be. The Shin Bet told The Times of Israel that it would not collect any data connected to overseeing quarantine orders, and that too would be performed by police.

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.

Shin Bet head Nadav Argaman attends a Knesset Defense and Foreign Affairs Committee meeting on November 6, 2018. (Hadas Parush/Flash90)

“There will be no other use of the information, including for criminal proceedings,” according to the government decision.

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 telephone late Monday night and early Tuesday morning. There were no dissenters.

The Knesset subcommittee on clandestine services had been asked to approve the measure before breaking up on Monday for the swearing in of a new Knesset, but chair Gabi Ashkenazi of the Blue and White Party declined as the matter required additional debate, according to a Knesset spokesperson.

Critics have said Likud leader Benjamin 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. Netanyahu’s 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.

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 hit 298, including four 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.

Kiryat Ye’arim (Telz Stone), with one-quarter of their residents in quarantine and 8 residents confirmed infected. March 16, 2020. (Yonatan Sindel/Flash90)

The measure has faced criticism from human rights and privacy experts as effectively it means any person in Israel could come under surveillance by the Shin Bet, an organization with no public transparency requirements.

In a statement Sunday, attorney Avner Pinchuk, of 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.”

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 exist — as part of a 2002 law giving the agency direct access to the information, rather than having to request it from cellphone companies — but are not generally accessible to the security agency. The proposal will allow the Shin Bet to use that information without requiring any additional approvals from courts or the government.

A traveler wearing a protective mask checks her phone at the arrivals hall of Ben Gurion International Airport near Tel Aviv on March 10, 2020. (Jack Guez/AFP)

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 Betzalel 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.”

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 it would be the Shin Bet responsible for the program, rather than a more transparent organization.

Tehila Shwartz Altshuler testifies before the Central Elections Committee at the Knesset on August 8, 2019. (Screen capture/Facebook)

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.

She added that establishing such a draconian measure when there was not yet a fully active Knesset in place was also a deeply troubling decision.

Altshuler Shwartz warned that by using this form of surveillance, which is typically reserved for counterterrorism, in a health crisis, the government was making it more likely that it would be used in other non-security-related issues in the future.

“This argument could be used in the future for anything, an economic crisis, an educational crisis,” she said.

Times of Israel staff contributed to this report.