Israel's Supreme Court ruling on ISA's contact tracing is a reflection of the government’s decision-making processes during COVID
In response to the Supreme Court ruling on limiting contact tracing by the Israel Security Agency (Shabak), Dr. Tehilla Shwartz Altshuler and Adv. Rachel Aridor Hershkovitz, researchers from the Israel Democracy Institute, noted that "The Court has strengthened the claims we have made all along that this policy entails a serious harm to human rights. Israel is the world's only democracy that chosen to act in such an extreme manner, without appropriate backing from experts and based upon incomplete data and information that was presented to decision-makers."
"In its ruling, the Court reiterated the centrality of the right to privacy and its great importance in the current era. Even in times of emergency not everything is allowed. The Basic Law of Human Dignity and Liberty must be applied and the interests of protecting public health and protecting human rights must be balanced," the IDI researchers added.
According the researchers, the justices did not accept the claim that "it is enough to point to one person whose life was saved thanks to the ISA contact tracing to justify the use of the ISA Tool, due to the serious harm caused when the surveillance agency is the preventive security service of the state, and in light of the fact that this mechanism is not transparent. The two combined, Judge Amit wrote: "automatically forms an acidic compound that can corrode the iron defenses of any democracy."
The IDI researchers also note that a second element prevalent in the judges' decisions concerns the government's addiction to using such mechanisms. Judge Meltzer noted that "the time has come to get rid of this measure, as it is addictive and even encourages the creation of other harmful practices." Even Judge Solberg, who refused to join recent injunctions issued by the Court, ruled that "the most recent statement by the ISA was the same as their initial statement. This state of affairs raises concerns about the decision-making process."
Dr. Altshuler Shwartz and Adv. Hershkovitz said that "the ruling does not only touch on the right to privacy– it is also a reflection of the government’s decision-making processes during the COVID crisis. We cling to decisions even when there is no real justification because circumstances have changed. Decisions are made without a convincing factual foundation, but on the basis of gut feelings and hopes. Worst of all, data manipulation is allowed to achieve the desired results that will support policy."
Dr. Shwartz Altshuler and Adv. Aridor Hershkovitz conclude that, "It is clear that whoever signed from the Ministry of Health that reports that were presented to the Knesset and the government should reconsider their positions. Moreover, the ruling shows that public criticism of decision-making processes is justified and important, and how much transparency is necessary especially when dealing with raw data and in the debates that surround the decisions to put in place difficult restrictions on Israel's citizens."