Recent media reports alleging that the police are using controversial surveillance software to spy on Israeli citizens has troubling implications and the current Protection of Privacy Law is not equipped to cope with today’s reality. Israel badly needs new legislation that is up to the challenges of the information age.
It’s not that we didn’t know that our smartphones are mobile spying devices and that the digital breadcrumbs we leave behind us can be used against us. And yet, the revelations about the use of NSO’s Pegasus surveillance system by the Israel Police to monitor demonstrators and local mayors, and simply to “fish” for possible suspects, should still send some serious shockwaves. It is worth remembering that using the Pegasus system is the closest thing possible to getting into our minds and our souls. It allows everything to be extracted from a phone: emails, WhatsApp correspondence, social media usage, photos and videos, location data, documents, notes, and metadata. We tend to think that the tech giants already know everything about us, and that in any case, we have nothing to hide. But we must remember that the impact of any information about us collected by the police is huge, because this information can subsequently become evidence for investigations, arrests, and sentencing.
Similarly, it’s not that we didn’t know that the Pegasus system has become a gift of friendship bestowed by the State of Israel on dictatorships and semi-dictatorships around the world, and we were even aware that it is used against Palestinians in the West Bank. But today’s revelations clearly showed us the slippery slope in action: When intrusive information-collection technology is made available, it’s only a matter of time before it is used against us, the citizens of Israel. Moreover, when technology is used illegally in order to “combat serious crime,” it will eventually be used against demonstrators and political rivals as well.
The full details have yet to emerge, and Minister of Public Security Omer Barlev was quick to announce that his inquiries had found that “there is no practice of conducting surveillance and phone intercepts without judicial authorization,” but in the same breath he also said that he “intends to make sure that no corners are being cut regarding NSO.”
From a legal perspective, the use of systems like Pegasus for law enforcement purposes without a court warrant is, quite simply, an illegal activity that contravenes the Communications Law and the Wiretap Law, and that infringes on the right to privacy afforded by the Basic Law: Human Dignity and Liberty. This is no different from unauthorized use of a weapon or torturing suspects. When the police commissioner authorizes the use of such technology against protestors and against citizens who are not under investigation, without any objection from the internal chain of command in the police, that's when the Israel Police begins to resemble agencies in states to which we would prefer not to be compared.
In recent years, this has happened again and again: The police adopts some new technology—such as the Hawk Eye tracking system, face-recognition cameras, crime forecasting software such as Fifth Dimension, and more—with no public debate, behind a thick smokescreen and with no explicit legal authorization, and without the police itself undertaking a proper assessment that takes into account broader harmful consequences and other problems associated with such systems. While the Protection of Privacy Law includes an “exemption clause,” according to which Israel’s security agencies do not bear responsibility for infringements of privacy, the police seems to believe that the existence of this clause gives it the a priori right to deploy intrusive technologies. This approach needs to be scrapped.
But there is also another issue here. In the response to the revelations, the police stated that everything was done with the approval of the Attorney General, which in itself should be shocking. We know that in recent years, the Attorney General has given the ok to various state agencies to use intrusive technologies (such as surveillance cameras in cities, traffic cameras, the Hawk Eye system, and more) without this use being grounded in law. Moreover, over the last year there has been an ongoing battle over freedom of information due to the Attorney General’s refusal to make these guidelines and approvals public. Essentially, based on reports, the Legal Counsel and Legislative Affairs Department (under the Attorney General) is permitting the use of surveillance technologies for which there is no explicit legal basis, all without any transparency or public oversight.
Surveillance of Israeli citizens without judicial approval or a court warrant should constitute the Yom Kippur War of the Israel Police—a debacle impelling us to serious reflection and reform. But the revelations also reflect the absurd state of affairs within the Ministry of Justice: Even as the Justice Minister is proposing a bill to defend the rights of suspects and defendants, the Attorney General’s staff are allowing the police, behind closed doors, to strongly infringe on these rights. On the one hand, the Minister of Justice has presented a “reform” of the Protection of Privacy Law, while on the other, privacy is being increasingly undermined by new technologies, with the Attorney General’s approval.
Today, it is clear that the right to privacy is not a left-wing or right-wing issue. Cellular phone intercepts harm us all, from Netanyahu’s advisors to the Black Flag demonstrators. The Ministry of Justice and the Ministry of Public Security must immediately undertake every effort to examine this affair in depth and make sure that it never happens again.
The article was published in the Times of Israel.