An Israeli protester, wearing a protective mask bearing the slogan 'Crime Minister' and standing with others distanced two meters apart from each other due to the COVID-19 coronavirus pandemic, holds a sign showing the faces of Israeli Prime Minister Benjamin Netanyahu (R) and ex-rival Benny Gantz (L) with a caption in Hebrew reading 'Israeli ashamed' at a demonstration in Rabin Square in Tel Aviv on May 9, 2020. (Photo by JACK GUEZ / AFP)
An anti-lockdown protester compares New York Governor Andrew Cuomo to Adolf Hitler at a demonstration in front of the governor's residence in the state capital of Albany, New York, May 1, 2020. (Luke Tress/Times of Israel)
Keeping a 2-meter distance from each other, thousands of protesters attend a 'black flag' demonstration in Tel Aviv on Saturday, April 25, 2020. (Miriam Alster/Flash90)
A protestor with a sign that has Michigan Gov. Gretchen Whittmer depicted as Adolph Hitler at an American Patriot Rally organized by Michigan United for Liberty protest for the reopening of businesses on the steps of the Michigan State Capitol in Lansing, Michigan, April 30, 2020. (Jeff Kowalsky/AFP)
Protesters gather at the Michigan State Capitol in Lansing, Mich., Wednesday, April 15, 2020. Flag-waving, honking protesters drove past the Michigan Capitol on Wednesday to show their displeasure with Gov. Gretchen Whitmer's orders to keep people at home and businesses locked during the new coronavirus COVID-19 outbreak. (AP Photo/Paul Sancya)
The unprecedented circumstances presented by the coronavirus pandemic have caused governments around the world to take unparalleled measures in response. Such actions have included granting emergency executive powers, enforcing quarantines, and contact tracing through private individuals’ telephone data surveillance. This has sparked concerns about civil liberties among legal experts worldwide — including in Israel and the United States — who are now pushing for increased scrutiny.
“One thing we do know, we need to make sure we retain an appropriate balance with cherished rights,” said Oren Gross, the Irving Younger Professor of Law at the University of Minnesota Law School and a former senior legal advisory officer in the IDF Judge Advocate General’s Corps.
“It’s very tempting in some extent, in the circumstances now, to basically chuck everything out the window and say, ‘since we’re fighting an enemy, everything is kosher,’” he said.
Gross has expertise in the area of emergency powers, which he says have a tendency to stick around once the emergency goes away. He adds that this characteristic is not unique to Israel or the US.
Oren Gross, the Irving Younger Professor of Law at the University of Minnesota Law School. (University of Minnesota Law School)
“Once a government gets accustomed to emergency powers,” he explained, “there’s a question of whether or not a surveillance power will be used post-emergency by secret services around the world, whether or it’s justified or not.”
Early in the Israeli coronavirus response, Israel’s internal security service, the Shin Bet, began surveilling individuals’ cell phone data to detect infected people and others with whom they had come into contact.
Deborah Pearlstein, the co-director of the Floersheimer Center for Constitutional Democracy at the Cardozo School of Law at Yeshiva University, cited a “privacy concern” in the security agency having “a cache of information about individuals.”
The Israeli Supreme Court initially halted the policy before allowing it to proceed. The Knesset subsequently challenged the policy further, ultimately accepting it in a modified form.
Deborah Pearlstein, co-director of the Floersheimer Center for Constitutional Democracy at the Cardozo School of Law at Yeshiva University. (Courtesy Cardozo School of Law)
This policy was recently referenced in research paper “Can a virus undermine human rights?” by French scholar Olivier Nay of the Panetheon-Sorbonne University. In the paper, which was published in The Lancet, Nay included Israel’s cell phone monitoring policy with similar surveillance efforts using mass technology in China, South Korea and Singapore. He called such policies “an intrusive biopolitics where everybody can be watched, screened, and monitored in their every movement.”
“Although such observation from a distance is effective in containing COVID-19, there is little knowledge on how these data will be stored over the long term and how tempting it will be for governments to maintain increased amounts of surveillance in the aftermath of the pandemic,” Nay wrote.
For University of Minnesota professor Gross, “you have to make sure that when the executive branch in the US, or the government in Israel, undertakes certain emergency measures, they will be in fact supervised and monitored.” This can include both judicial review and legislative review.
“All of this needs to be put in place, regardless of how much you approve the steps and measures undertaken by the government, and whether you suspect the government is doing the right thing,” he said.
Prime Minister Benjamin Netanyahu in the Knesset, April 30, 2020 (screen capture via Knesset website)
During their respective coronavirus responses, both Israeli Prime Minister Benjamin Netanyahu and US President Donald Trump have faced opposition from legislative bodies.
Pearlstein said that in the early days of the Israeli response, “Netanyahu seemed to say he could effectively suspend the Knesset and not call it back.”
“I was happy to see Israel step away [from this],” she added.
Similarly, she criticized Trump for offhandedly claiming that he could adjourn Congress, noting that such a move would be beyond the scope of his executive powers.
Although Pearlstein faulted Trump for what she considers overreaching statements about his authority, she feels that in other ways, he’s under-reaching his authority, such as not doing enough to secure supplies and coordinate their delivery. She holds that doing so would be within the “enormous amount of power” that the federal government can marshal during an emergency response.
Illustrative: President Donald Trump participates in a tour of a Honeywell International plant that manufactures personal protective equipment, Tuesday, May 5, 2020, in Phoenix, Arizona. (AP Photo/Evan Vucci)
The right to assemble
The issue of how much power a government can wield in its response has been raised by recent protests in both the US and Israel.
Pearlstein called some of the US protests overly “vigilant” and “aggressive,” especially in regard to the brandishing of weapons under the pretext of exercising Second Amendment rights.
Yet, she said, “You step back or above, 100 feet out, it’s a pretty small group, maybe a couple hundred.” And, she noted, “In public opinion polls, the vast majority of Americans support isolation measures, given the prevalence of the virus in the country.”
“Those who protest may [do so on] what they describe as civil liberties grounds,” Pearlstein said, “grounds that the state is shut down, limiting their movements, [they can’t] shop, go out to restaurants, which is what they want.”
But she questions Trump’s support for such protests, which includes his tweets to “liberate” states where they have occurred. “I think it’s troubling because the message is not consistent with public health guidelines that we ignore at our peril in the US,” she said.
Pnina Lahav, a professor at the Boston University School of Law, wrote in an email to The Times of Israel that in her opinion, coronavirus restrictions may limit, but not prohibit, protests in the US. “The right to demonstrate is pretty strong in the US,” she said. She cited the First Amendment, although coronavirus restrictions in certain states have limited the number of people who may assemble.
Limits on gatherings have also been implemented in Israel under emergency powers by the Health Ministry. According to Lahav, at a more restrictive period in Israel, the police have confined demonstrations to 10 people and mandated a 10-meter distance between groups, with a 5,000-shekel fine for each violation.
Israelis protest at Rabin Square in Tel Aviv on May 2, 2020. (Miriam Alster/ Flash90)
However, it seems that restrictions are not uniformly followed. Lahav cited a photo in the Israeli media of a crowd of protestors at Habimah Square in Tel Aviv. In an email correspondence with The Times of Israel, she wrote, “It is not clear that the police has [the] power to make these restrictions,” and called the fine amount “quite draconian.”
People keep social distance amid concerns over the country’s coronavirus outbreak, during a protest against Prime Minister Benjamin Netanyahu and Knesset Speaker Benny Gantz, at Rabin square in Tel Aviv, May 2, 2020. (AP Photo/Ariel Schalit)
Eugene Kontorovich, a professor at the Antonin Scalia School of Law at George Mason University, said that in addition to protesting, aggrieved citizens have another recourse: They can go to court. He cited a recent US federal court ruling on behalf of citizens upset over a coronavirus-restriction ban on group prayer. He wondered whether Americans might start asking, “Why is this kind of business ‘essential’ and that kind of business ‘nonessential,’ why can’t I go more than 500 meters from my home, for example, but other people can walk for protesting?” He added, “They can go to court and say it is completely unreasonable and unnatural.”
Kontorovich notes that while there have been “sort of citywide closures in the 1918 flu epidemic,” the “sheer breadth” of quarantines and lockdowns today is “unprecedented.” He said that as coronavirus responses continue and “something becomes semipermanent,” it is “likely courts may become comfortable” ruling on the legality of emergency measures.
Eugene Kontorovich, professor at the Antonin Scalia School of Law at George Mason University. (Courtesy)
Interviewees acknowledged that as concerning as the situation may be in Israel or the US, things are worse in nondemocratic governments such as China, where the coronavirus was first diagnosed in 2019.
“In Israel, you get a 500-shekel fine if you break the quarantine,” Kontorovich said. “In China, you go to a prison camp for a very long time.”
“An authoritarian regime — be it China, be it Iran or several others — has several problems,” Gross said. “One is transparency on whether or not authorities knew [about the virus] … This is the era of fake news on steroids.” Secondly, he said, “once they openly attack the virus, they could undertake measures most democracies are queasy about — normal, robust democracies that we all want to live in.”
He said, “The operation of a curfew for 60 million people should not be taken lightly. It should make our eyebrows go up,” because democracies take “freedom of movement, of assembly, very, very seriously. China could basically [take] some measures that, how shall I put it, have less concern for these liberties and rights.”