The new regulations that allow the ISA to track citizens threatens our right to privacy, and set a dangerous precedent that could remain with us long after the COVID-19 crisis comes to an end.
The Emergency Regulations approved by the Government in the middle of the night, bypassing the Knesset, give the ISA (Israel Security Agency) extensive powers to access the location data of each and every one of us. These extreme regulations threaten our right to privacy, and set a dangerous precedent that could remain with us long after the COVID-19 crisis comes to an end.
Here are all the answers to all your questions.
What are Emergency Regulations?
The authority to put emergency regulations into effect is protected in §39(c) of the Basic Law: The Government. It authorizes the Government to modify or temporarily rescind any law on the books. In the present case, this means a change in the provision of the Communication Providers Law which requires ng a court order that permits cellular providers to request location data, and vesting the Police with the authority to obtain it without such an order. At the same time, the General Security Service Law was modified to allow the use ISA’s services not only in matters of national security, but also in order to deal with the pandemic, which is a civilian event.
Who is being tracked, and for how long?
Everyone recorded by the Health Ministry as required to go into isolation, from now on; everyone who has been ill with COVID-19 during the past 14 days; and everyone who was near that person’s cellphone during the past 14 days—on the train, in the street, at work, in fact, anywhere. This surveillance is conducted by means of the location data provided by our cellphones—smartphones and dumb phones alike.
It may also be possible to track our call and messaging history, not including the content; our credit history; recordings from surveillance cameras on the streets and in public places (such as hospitals), which can be analyzed using artificial intelligence systems, among other ways. The regulations granted authority to the ISA expired on March 30—but can be extended. The regulations that empower the Police to obtain this data will be in effect until the state of emergency is over.
What will the Police do with the data?
The Police may now obtain cellular location data without prior authorization by the courts, based on a precise list of the names of those who are required to remain in isolation, and only about those persons. The regulations allow an authorized official, at the request of a police officer, to approve submission of a request to the cellular provider in order to obtain location data for a COVID-19 patient or for an individual who is required to remain in isolation, without a court order, in order to prevent or limit the spread of the contagion. The Police are forbidden to make any other use of this information for any criminal proceeding, and the information must be deleted when the state of emergency is over.
In addition, the Health Ministry will be allowed to store this data for another 60 days for research purposes—but this is problematic: You want to conduct an investigation? Ask for a court order.
What information will the ISA collect?
Apparently- only location data. However, the situation is not yet clear, with regard to the monitoring of calls, messaging, and WhatsApp histories.
There is no doubt that this is an eminently worthy purpose, and is part of the collective effort to halt the epidemic. But a vast quantity of data will be available to the ISA, which it can cross-check against information on our age, background illnesses, criminal record; in short—on everything about us. This means that huge power is being placed in its hands.
In our view, , the data could just as well be collected by civilian agencies and transmitted directly by the cellular providers to the Health Ministry, the Police, or the Home Front Command. Technological solutions could be used to collect the information, with less violation of privacy: for example, allowing the Health Ministry to access our location data once a day.
What is so problematic about the ISA?
The ISA is a secret, hush-hush organization, directly subordinate to the Prime Minister, and not bound by the Freedom of Information law or the principle of transparency. Experience shows that it is subject to very little oversight—whether by the Knesset or by the courts. Unlike the situation with regard to criminal inquiries or the war on terrorism, the secrecy associated with epidemiological investigations is intended to protect the privacy of virus carriers and those who come in contact with them, and not to keep them in the dark about the very fact that they are being investigated. And so, it is important not to hide behind the ISA veil of secrecy, but instead- to make the public aware of what means are being used.
Why is there a need for digital surveillance in the first place?
The goal of digital surveillance is to help the Health Ministry deal with the coronavirus emergency in the following way:
The location of the cellphone of all confirmed COVID-19 patients will be traced back for 14 days. Then all those who were in the same “cell” with them—roughly within 10 meters—at any time that period. This will make it possible to notify these persons that they should isolate themselves at once, as well as to know how “toxic” confirmed patients were: Were many persons in their nearby environment, or only a few. In a closed space or in the open air? Older or younger adults? Persons with other illnesses? And so on.
With regard to those required to enter quarantine and recorded as such by the Health Ministry, it will be possible to monitor the location of their cellphones and verify that they are complying with the quarantine.
Why was the Knesset bypassed?
The ISA Law stipulates that any extension of its authority must be approved by the Secret Services subcommittee of the Knesset Foreign Affairs and Defense Committee. The Government tried to obtain this approval, but the subcommittee did not manage to arrive at a decision, the Knesset was dissolved, and a new Knesset was sworn in, but its committees had not yet been established. In this interim period, the Government decided to implement the new arrangement by means of emergency regulations. This is what made it possible to bypass the Knesset.
So what rights do we have?
Emergency regulations do not freeze the validity of human rights. This includes the right to privacy, as protected by in §7 of the Basic Law: Human Dignity and Liberty, which states that “All persons have the right to privacy.” But according to §12 of the same law, “Emergency regulations may deny or restrict rights under this Basic Law, provided that the denial or restriction shall be for a proper purpose and for a duration and the extent no greater than is required.”
Is the violation of privacy created by the present emergency regulations “No greater than is required”?
Many limits were incorporated in the regulations, such as allowing the data to be used only to fight the coronavirus pandemic; the ban on using the information for any other investigation or transferring it to some other agency (such as the Police and the tax authorities). Any civil servant using the information for any other purpose, is subject to criminal sanctions of up to three years’ imprisonment.
What is more, when the emergency regulations expire, the ISA is required to delete the information it has collected, and the Attorney General will monitor this process.. For example, it is forbidden to transmit irrelevant information to the Health Ministry. That ministry, too, will define a procedure, approved by the Attorney General, both for the use of the information, and on who may access it (a restricted number of officials with the appropriate security clearance); these persons will have to sign a form affirming their understanding s of the criminal implications of use of the information in violation of these emergency regulations.
However, the regulations themselves stipulate that all the rules on the collection of information --what will be collected, how it will be stored, how it will be transmitted to others, and how it will be deleted—all these will be determined by the ISA itself. In other words, these rules will be confidential and we will never know what they are. Who will know? That’s a good question. Will he or she be able to monitor the situation without a public eye looking over his shoulder and without public pressure? That seems unlikely.
These emergency regulations deviate very far from the norm, and grant the ISA powers it has never had in the past. Along with the information that the Police can access, we now have two Big Brothers wielding unprecedented powers. Yes, there are limits, but we know that nice words are one thing, and what actually happens is something quite different.
The emergency regulations create a dangerous precedent that could remain with us long after COVID-19 is gone. The Israeli security agencies have outstanding capabilities, but this does not mean that they should be utilized for surveillance of citizens.
We call on every individual who is being tracked to be informed that this is happening. There is no justification for secrecy; not by the Police, not by the ISA, and not by the Health Ministry, about the fact of surveillance. What is more, there needs to be public oversight and transparency of all these procedures. The Knesset must immediately establish a special committee to track the use made of these draconian powers, on an ongoing basis, both in the future and retrospectively,. We must understand: public trust and mutual responsibility will encourage public compliance with the rules; turning us into a surveillance society based on fear and suspicion will not. Such trust and a sense of responsibility are essential for national resilience, as we take on the challenge of dealing with the crisis.