Biometric legislation in its current form poses a formidable global challenge to champions of democracy, privacy, and individual choice. What is the Israeli Biometric Database Law and how does it deviate from the norms that govern individual/government relations in democracies? How and why has a law that deviates from Western democratic norms been enacted in Israel? Is there something about Israel’s political structure that favors the creation of such a law? Attorneys Nitzan Lebovic and Avner Pinchuk survey Israel's proposed biometric legislation.
"[T]he state," wrote Aristotle in his Politics, "is by nature clearly prior to the family and to the individual, since the whole is of necessity prior to the part; for example, if the whole body be destroyed, there will be no foot or hand, except in an equivocal sense, as we might speak of a stone hand..."Aristotle, Politics, Book I, Part II, Mark 1253a: See Aristotle, Politics, trans. Benjamin Jowett (NY: Dover Publications, 2000) or online version.
In Aristotle's "whole body" metaphor, the state, like the individual person, is a whole composed of various parts—the group of people who reside in it, the polis. If, as Aristotle maintains, "man is by nature a political animal," a person must therefore belong to a political framework of some kind: "[H]e who by nature and not by mere accident is without a state, is either a bad man or above humanity..."Ibid.
But what happens when the state itself insists on dismantling the citizen's whole body into its component parts? In such an instance, is the equation between the "whole body" of the citizen and that of the political entity preserved? If not, does the state itself not become a "stone hand," as Aristotle puts it?
Current efforts to divide the individual citizen's identity into separate components bring the question of the individual/political body analogy into a realm where the individual has no control. Biometric legislation in its current form poses a formidable global challenge to champions of democracy, privacy, and individual choice. Before we address the problem, however, we must first elucidate its origin: What is the Israeli Biometric Database Law and how does it deviate from the norms that govern individual/government relations in democracies, in general, and in Israel, in particular? How and why has a law that deviates from all Western democratic norms been enacted specifically in Israel? Is there something in Israel's political structure—or in what the current Israeli government refers to as the country's "special" status—that favors the creation of such a law.
A storm is currently raging in the Knesset and among the Israeli public regarding a proposed law that would authorize the government to create a biometric database. The final vote on the law has been postponed for two years, during which time the database will be developed on a trial basis (as a “pilot” project).“Bill for the inclusion of biometric means of identification within Identification documentation and database,” Knesset Bill 408 (henceforth “the Bill”), Oct. 27, 2008, 1. The law calls for the Ministry of the Interior to issue “smart” passports and identity cards with microchips containing biometric information for identification purposes. Fingerprints and digital photographs will be taken of all Israeli residents, incorporated into their identity documents, and recorded in a database.
Biometric technology measures and quantifies every individual’s unique physiological attributes, thereby enabling them to be identified with a high degree of accuracy.Biometric characterization can also be applied to unique behavioral characteristics, such as diction or keyboard use patterns; for an overview of biometrics and its application to the process of identification see, for instance, Arnon Harel, “What is So Special about Biometric Technology (Hebrew),” ACRI, Oct. 29, 2008. Also see Harel’s presentation, entitled “Bill for the Inclusion of Biometric Means of Identification within Identification Documentation and Database (Hebrew),” ACRI, June 17, 2008. Lior Ben David and Itai Waisblau, “Biometric Means of Identification in Identification Documents and Governmental Databases – A Comparative Review,” Jan. 14, 2009, pp. 4-6, Knesset Center for Research and Information, (henceforth “Knesset Comparative Review”). However, the technology has the potential to become a double-edged sword. As noted in the bill’s explanatory section:
The advantage of using biometric identifiers […] lies in the fact that biometric information is information that the individual “carries” with him/her at all times; it is a part of him/her and does not change radically over time—in contrast to other forms of identifying information […] that can potentially be altered by counterfeit means, with limited ability to detect the forgery. It should, however, be noted that these special features of biometric technology also pose risks to personal privacy, due to the inability to “cancel” information once it has been disseminated.Preamble to the Bill (Hebrew), p.2.
Biometrics is not the only technology employed for identity authentication purposes;See the words of MK Sheetrit: “I believe this law will allow us to issue passports and I.D. cards to the citizens of Israel, which are not forgeable or, at least, are incredibly difficult and expensive to forge, and not only due to biometrics, but for other reasons as well, also the things we put into the documents, which are not elaborated upon in the bill, nor included in the bill, that the documents are to be issues with a much, much higher level of protection [translated verbatim from the minutes of the relevant meeting], beyond that of biometrics. Biometrics is just another layer of security guarantee.” See the minutes of the July 23, 2009 session of the Joint Committee of the Science and Technology Board and the Board of Interior and Environmental Protection [henceforth the “Joint Committee”], p.89. only a decade-long review has prevented the Ministry of the Interior from incorporating other high-tech features into the identity cards and passports that it issues.Ministry of Interior, “Milestones – Sophisticated I.D.s, The Smart I.D. for Israeli Citizens Is to Be Launched,” Press Release, Dec.1, 2008; see Nurit Paltar, “Smart I.D's: Eight Years of Ineptitude Omission (Hebrew),” Ynet, Nov. 11, 2007; The tenders issued to the government over the execution of the huge and profitable project have led to legal and public wars, sometimes spreading as far as foreign relations. See, for instance, Shmulik Shelah, “The U.S Ambassador Files an Official Complaint with Olmert over the Smart I.D. Deal (Hebrew),” Globes, Dec. 16, 2007. It was this delay that laid the groundwork for linking the adoption of a new identity document format with the creation of a biometric database for use by the Israel Police and other bodies.
Israeli government ministries spent two years developing their plan to establish an Israeli biometric database whose scope would far exceed that of its predecessors in the democratic world.For the unique features of the Israeli proposed database, see footnote 18 and onwards. However, the plan became known to the public only once it had taken the form of a Knesset bill. The initiative was harshly criticized from the moment it was announced. Along with an array of legal and information-security experts, social organizations, and activists,The public storm stirred by the initiative included experts on technology, legalists, information security personnel, human rights organizations, as well as individual activists – all of whom joined a campaign to remove this blight. See, for instance, the letter from the Public Committee for the Protection of Privacy, June 24, 2008 in “A Protest against the Biometric Law: A Struggle for Freedom" (Hebrew), Walla News, July 26, 2009. The struggle against the biometric database prompted citizens who were not usually socially active to join the struggle. See, for instance, the website of the campaign group NO2BIO against the Biometric Database Bill. See also Arik Bender, “Hundreds Attend a Demonstration against the Biometric Database (Hebrew),” nrg, July 25, 2009 ; Bar Ben Ari, “The Identities of the MKs Supporting the Biometric Law Revealed" (Hebrew), The Marker, July 24, 2009 ; Bar Ben Ari, “The Online Battle against the Biometric Law: Bloggers against Sheetrit" (Hebrew), The Marker, July 30, 2009. some of Israel’s highest-ranking scientists took the unusual step of mobilizing opposition to the proposed database, which they maintained would “be detrimental to privacy and human dignity, and could potentially jeopardize the security of the State and its citizens.”See the Scientists' Letter as it was republished on hamakor.org.il on Nov. 15, 2009 (Hebrew). See also: “Fourteen Scientists: The [Biometric] Law Poses a Threat to National Security,” main headline of Yediot Achronot print edition, July 29, 2009, and Ynet coverage thereof (Hebrew). The scientists again raised the issue in November 2009. See Roti Avraham, “Nobel Laureates: The [biometric] Law Poses a Threat to National Security" (Hebrew), News 1, Nov. 08, 2009. But even this elite cadre met with official indifference and disdain.Responding to the scientist's petition, MK Sheetrit called a press conference, declaring that the scientists had been misled and that in any case, they “do not represent the best specialists.” See Zvi Zarh'eya, “MK Sheetrit: Rejects Claims against the Biometric Database ‘with All Due Respect to the Men and Women of Science'"(Hebrew), The Marker, July 29, 2009. The public outcry had almost no effect on the functionaries and politicians who had developed the “biometric plan,” and who were resolved to implement it without delay.
In this article, we will try to delineate the fundamental problems that mar the proposed Biometric Database Law, from the manner in which Israeli legislators are approaching the issue of potential database malfunctions to the very great danger that the envisioned databases pose to democracy itself. More precisely, we will try to examine the extraordinary manner in which the Israeli government has addressed these issues. Current political theory points to an ever-intensifying connection between the “biometric” or the “biological” and the “political,” as evidenced in the concept of “biopolitics,” a grey area in which democratic governments resort to anti-democratic practices, ostensibly for the purpose of protecting their citizens. Our contention is that the Israeli Biometric Database Law is an extreme example of this type of law and, therefore, an ideal test case for elucidating a systemic failure, which obscures the boundaries between the branches of government, and blurs the distinctions between democratic and totalitarian political systems.
As noted by political theorists during the 1970s, the premise that governments are entitled to pry into citizens’ personal lives, or to exert control over their bodies or information regarding their bodies, testifies to the aggressive, violent nature of the state and those who run it. In this case, “democracy” has become an empty slogan that prompts citizens to distance themselves from anything “political,” and in extreme cases, serves as a rallying cry for violent insurrection by radical groups. Biometric legislation's declared purpose is to fight crime and prevent terrorism. In actuality, it alienates the citizen and confers a degree of unlimited authority on the state; the information age now enables the state to track the activities of individual citizens’ without revealing itself or its interest in them. It is hardly coincidental that the field of biometrics is based on technologies developed by commercial entities, or that these technologies are already being used by commercial clients. If we look at the matter in terms of political sectors, it is not surprising to find that the Knesset Biometric Database Bill was initiated by the “centrist” parties, which are interested in gaining maximum control, both political and economic, without having to lose the legitimacy conferred by the “democratic” label.
The 21st century ushered in an “age of terrorism” in which governments devoid of ideology are using the threat of terrorism to amass power in an unprecedented manner.A highly instructive example of the slow decline in democratic standards worldwide over the past decade through the cynical use of “the war on terror” is to be found in a report of prominent jurists, published in February 2009. See International Commission of Jurists, "Assessing, Damage, Urging Action: Report of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights" (Executive Summary, Report, and Press Release). British theoretician, Edward Higgs, has designated this “the confusion between geopolitics and internal class politics.”Edward Higgs, “The Rise of the Information State: The Development of Central State Surveillance of the Citizen in England 1500-2000,” Journal of Historical Sociology 14 (2) (2001): 190. Likewise, over the past decade Israel’s centrist parties have positioned themselves on the vanguard of the post-democratic “power state.”Political theorist, David Lyon, warns that the use of biometric identification means and of various surveillance methods would inevitably lead to popular perception of the state as the “strong state” or “power state.” See David Lyon, Surveillance after September 11 (Cambridge: Polity Press, 2003), 34. If human rights and guaranteed freedom of expression are intended to protect the individual from arbitrary manifestations of state power, then any weakening of these democratic safeguards would entail a staggering cost. As George Tomko points out, “biometrics could turn out to be the end of privacy as we know it.”See Tomko's theory on the subject and the work later continued by Irma Van Der Ploeg in a paper presented at the Privacy Laws & Business 9th Privacy Commissioners/ Data Protection Authorities Workshop, Nov. 11, 1998, Santiago de Compostella, “Biometrics as a Privacy-Enhancing Technology: Friend or Foe of Privacy?” This paper was quoted and discussed in Irma van der Ploeg, “Biometrics and Privacy: A Note on the Politics of Theorizing Technology,” Information, Communication & Society 6 (1) (2003): 85-104.
With regard to biometrics, a dual process is now underway: On one hand, the government is distancing itself from its private citizens and automating its relationship with them; that is, the relationship will now have to be mediated by biometric systems. On the other hand, we are also seeing a shrinking of distance between the ruling authority and the individual citizen's body to that between a computer keyboard and its operator. Under conditions of high security alert such as those prevailing in Israel, keys that are not necessarily the right ones may be struck repeatedly. In the absence of proper safeguards, as the current initiative clearly demonstrates, the price of increasing the distance between the government and the individual, while also shortening the path to the individual's body and medical history, may be too high to bear.
The existence of complementary information systems creates a near insurmountable temptation to exert control on multiple fronts as evidenced by an issue of particular importance on the public agenda of 21st century Israel: the growing interaction between “big money” and “big government.”The CEO of HP, which is meant to issue the biometric ID cards, was quoted as saying that the project would "permit other parties to 'piggyback' the smart IDs and allow for identification in places hitherto considered difficult for implementation—banks, for example." See Guy Grimland, "In a Year the Citizens of Israel Will Have a Smart Id, and That's Final" (Hebrew), The Marker, Dec. 1, 2008. See also Yosi Hutton: "Gertner: 'The current layout of the Israeli Biometric law is a mistake. It should be realized by the private sector, not the government' (Hebrew), People and Computers, Aug. 5, 2009 Moreover, as the Knesset bill's supporters within the ruling elite explicitly maintain, the goal of the Biometric Database Law is not merely to improve the existing system's efficiency, but rather to create a system based on ethnic and demographic distinctions. As MK Sheetrit has tirelessly asserted, “The purpose of issuing the [biometric identity] documents is to determine who is truly Israeli. In many cases, we don’t know, and this endangers the state’s security.”See the minutes of the July 23, 2009 session of the Joint Committee, p. 90 (Hebrew). For a media report on this meeting, see Adar Shalev, “The Fingerprint Database Law on Its Way to Final Approval" (Hebrew), Ynet, July 23, 2009. This is a recurring motif of Sheetrit. As Minister of the Interior, for example, he appeared before the Treasury Committee promising (in Hebrew): “We will issue both biometric passports and biometric, hard to forge, IDs, and then we will finally know not who is Jewish, but who is Israeli.” See the Treasury Committee meeting protocol, Oct. 10, 2007, p. 11. In a speech to the Knesset, he said: “Finally, we will know who is Israeli. Unfortunately, arguments used to revolve around who is Jewish; I ask who is Israeli. I am telling you, Mr. Minister of the Police, and I guarantee it. Nowadays it is impossible to know (Hebrew).” See the protocol of the 22nd session of the 18th Knesset, May 18, 2009, p. 97. He recently repeated these statements in an interview on the Kadima Party Website: “It is important that we clarify this, biometrics will unequivocally prevent forgery, allowing us to identify exactly and with certitude who is Israeli and who is not (Hebrew)." See Zvi Tziki Avisar and Amir Segal, “Will make an Excellent Prime Minister, If Elected – Special Interview” (Hebrew), Yalla Kadima, Oct. 14, 2009. The combination of a dangerous biometric control apparatus designed to distinguish between populations may well turn out to be the point at which democracy as we have known it breaks down.
Part I: Biometric Legislation Around the World and in Israel
Around the World
Over the past decade, countries throughout the free world have been faced with security threats. However, in most cases, concern for human rights and democratic freedoms has hindered initiatives on Israel’s planned biometric database. The Knesset bill, as formulated by the government itself, points out that “most Western countries...do not have the practice of maintaining centralized and complete national biometric fingerprint databases.”Explanation of Section 8 of The Bill, p.9 Even the background paper that the Knesset prepared notes that the database will be the first of its kind in the democratic world, should it come to be.Explanation of Section 8 of The Bill, p.9. However, the acknowledgement of this point has not stopped the bill’s supporters from insisting, during Knesset deliberations, that national biometric databases do, in fact, exist in many other countries.“Enough with the paranoia,” said Sheetrit at a Joint Committee meeting. “We are not the first people to have biometric databases in the world; many European countries have them. Israel too, I am sorry to have recently discovered, in fact has biometric databases that each contain information about hundreds of thousands of people (Hebrew).” See the minutes of the July 9, 2009 session of the Joint Committee, p. 35. “You are misleading people. Many European countries with biometric passports have databases….you can check it. Switzerland, France. You are saying things which are blatantly incorrect.” When referred to the Knesset’s report by the Center for Research and Information, he responded (in Hebrew): “they are hardly the infallible authority. The Knesset Center for Research and Information does what it can with the tools that it has, and this was done, if I am not mistaken, nearly a year ago and is no longer relevant.” See the minutes of the July 7, 2009 session of the Joint Committee, p. 7 (Hebrew). Neither Sheetrit nor other Ministry of the Interior personnel presented any other study. In the context of an expanded Knesset debate on the topic, Dr. Karine Barzilai-Nahon, head of the University of Washington’s Center for Information and Society, presented a study that strongly refuted this claim.Keren Barzilai-Nahon, “The Biometric Database: A Comparative Study" (Hebrew), The Gatekeeper, August 12, 2009; this study was presented at the Israeli forum for information security held at the IDC in Herzliya. For a comparative table, see the Interstate Comparison of Biometric Databases (Hebrew). “Governments are straddling the fence," concluded Barzilai-Nahon; some are deterred by the revolutionary nature of the technology, while others are engaged in an ongoing public dialogue about it. 
In the United States, for example, a plan similar to the Israeli database initiative (“Real ID”) elicited considerable public opposition, and since most states have declared their non-participation, it has been dying a slow death.See the ACLU’s Real Nightmare. Japan’s population registry system, which does not include biometric data, is used exclusively for population administration purposes. Germany has also explicitly decided against including biometric data in its database due to concerns about such an excessive concentration of power in the hands of the government and the possible abuses of that power.Barzilai-Nahon, "The Biometric Database: A Comparative Study" (Hebrew)
The United Kingdom has set an admirable example of moderation and caution regarding the implementation of complex and dangerous technological initiatives. In response to vehement public outcry, the British government has cancelled its plans to require citizens to submit their fingerprints for inclusion in identity documents and in a national biometric register.See, for example, Leo King, “Government U-turn on 5£bn ID Cards,” Computer World UK, July 1: 2009. The government had earlier announced that it would be postponing the project's implementation until after the coming elections despite, or perhaps due to, the fact that the conservative opposition had declared its intention of canceling it entirely should it return to power.See the British Conservative Party, “A Conservative Government will Scrap the ID Card Scheme,” Conservatives, June 12, 2009.
Efforts to Advance the Initiative in Israel
On the surface, the security benefits that Israel would reap from a national biometric database are clear. The database’s utility in crime prevention and in the surveillance of suspected terrorists would make it an invaluable tool for the country's security forces. However, the project envisioned in the Knesset bill would offer far more than a means of countering “immediate” security threats. The political rhetoric used to promote the bill—typified by MK Meir Sheetrit’s repeated calls for its rapid enactment—raises suspicions that its potential dangers have not been seriously addressed.
It is worth noting that the initiative was by no means easy to sell to Israeli officials. Its numerous potential drawbacks raised major concerns both within the security forces, which questioned the ability of Interior Ministry functionaries to safeguard a strategic asset of this magnitude,A government representative who deals with the war on terror spoke at a panel held by Tel Aviv University, which was attended by the authors, stated that after many a lengthy discussion, the security branches reached the conclusion whereby “we can live with the database,” and explained that their activities did not require it. and among jurists, who feared that democratic values would be undermined. It took a long time for the “biometric bandwagon” to gain an adequate following; the functionaries who supported the project did not enjoy the support of the political echelon. The situation changed only with MK Sheetrit’s appointment as Minister of the Interior. The use of biometrics was not new to Sheetrit who, as Minister of Transportation, had established a biometric image database without waiting for the Knesset to pass legislation authorizing it.In November 2005, the Ministry of Transportation announced that it would begin issuing new drivers licenses that would include biometric photographs. It stated that these “biometric” pictures would be stored in the licensing authority’s database. See the Ministry of Transportation, Press Release, Nov. 13, 2005. It took another year before an amendment to the 2006 Law of Transportation (Knesset Bill 226, November 13, 2006, p.158) was proposed, in which it was explained that “due to the danger of infringing upon the right to privacy by storing these pictures, the authority to manage such a database should be situated and defined within the law, as should the rules and regulations for use of this database.” This bill was criticized during the Economic Committee’s only discussion on the subject. See the minutes of the June 18, 2007 session of the Economic Committee (Hebrew). The bill has not yet been passed by the Knesset. For more on this subject, see Shachar Hezalkorn, “Ministry of Transportation Acts Unlawfully" (Hebrew), Ynet, Nov.10, 2008. See also Avner Pinchuk, "The Biometric Picture Database of the Ministry of Transportation – Illegal" (Hebrew), The Little Brother, Nov. 18, 2008.
This was the opportunity that the Ministry of Public Security was waiting for, since it viewed the technology, with its multiple surveillance capabilities, as a cure-all for the Israeli police force.At the time, in the summer of 2007, the police attempted to persuade the Knesset to allow the set up of a new communication pool which would include information regarding the communication lines and telephones of all Israeli residents. The bill passed into law in December of that year, Criminal Procedure Act 2007 [enforcement authority-communication data], Sec. 2122 (Hebrew), Dec. 27, 2007, p. 72. See Shachar Ilan, “Approved in Committee: A Police Database for Communication Information to Be Created" (Hebrew), Ha'aretz, Dec.14, 2007. Immediately after, it became evident that the police were already working on the next initiative – gaining authority to conduct covert searches in suspects' homes. See Yuval Yoaz, “Police Pushing Bill to Allow Covert Home Searches (Hebrew),” Ha'aretz, Dec. 14, 2007. “Rather than equip the police with the resources compatible with the extent of its duties, the recruitment of more policemen and enhancement of their professional level…the minister has chosen the easy, invasive solution.” See “The Great Invasion of Privacy (Hebrew),” Editorial, Ha'aretz, Dec. 19, 2008. Public Security Minister, Avi Dichter, joined forces with Sheetrit; they agreed to link the establishment of a biometric database with the smart ID card project and to make the data available to the Israeli police as well."As part of his duties when he was the minister for homeland security, Avi Dichter approached Roni Bar-On in his role as Minister of the Interior, regarding the biometric database," said Udi Slavin, Dichter's Chief of Staff. He claims that the database is the only surefire way to prevent double issuing of ID cards. "Bar-On thought it unnecessary, mostly due to the great cost. As soon as Sheetrit stepped in, he started promoting the issue (Hebrew)." See Or Hischauga, "Dubious Legislation," Ha'aretz, Nov. 8, 2008. The Assistant Legal Counsel to the Government, Malkiel Blass, told of how the database was initially conceived as a tool to prevent early, issuing stages, forgery. Only at a later stage did the police get involved, requesting to use the database for its own means. "While we were preparing the piece of legislation, the police and various security agencies appeared, presenting us with their requirements of a biometric database (Hebrew)." See the Minutes of the June 30, 2009 Session of the Joint Committee, p. 4 Sheetrit declared the biometric project a major objective.“Last month the Chief of Staff of the Ministry of the Interior, Mr. Arye Bar, speaking for the minister, Mr. Meir Sheetrit, announced that his office considers the issue of biometrics and the implementation of new ID documents incorporating biometrics, to be an incredibly central goal.” Governmental Biometric Implementation Team, Office of the Prime Minister, “Biometrics,” August 1, 2007. In March 2008, after quelling opposition on the part of the Justice Ministry,Jurists’ reservations regarding the database increased following the decision to permit the police to use it. Yet the moment Sheetrit succeeded in receiving governmental approval for the plan, they were forced to close ranks with him and fulfill their duties as the plan's plenipotentiaries. During the discussions, some of them acted as though coerced, contradicting arguments that they had just made the previous day in internal forums. “I sat in the minister’s committee on legislation,” cried Minister Michael Eitan, addressing the Ministry of Justice representative, “and the government assistant legal counsel sat there and said that she objects to the database. So why are you just sitting there and not saying a word? (Hebrew)” See the minutes of the July 21, 2009 session of the Joint Committee (Hebrew), p. 4. However, Sheetrit served as an excellent warden, making sure that not the slightest whisper of reservation would be heard from any governmental representatives. When Ya'acov Ganot, head of the Registry Authority, asked for a professional opinion on a certain matter, Sheetrit immediately said, “it is not their position, because their position is that of the government.” Ganot attempted to explain that it is a professional body of research, but Sheetrit cut him off, saying: "So what? There is the position of the Ministry of Justice.” See the minutes of the July 7, 2009 session of the Joint Committee, p. 39. he submitted the bill for government approval.During the government meeting in which the bill was approved, the then Prime Minister, Mr. Ehud Olmert, said: “I would like to take this opportunity to compliment our Minister of the Interior, Mr. Meir Sheetrit, who, perhaps due to his academic background in the field of microbiology, from the first moment of his instatement…took this subject under his wings and gave it an extraordinary push forward…he succeeded, using staff work, to reach a general concord, as well as an agreement as to the necessary tools for a speedy implementation of the decision (Hebrew).” See the Prime Minister’s opening statement in the protocol of the government meeting held on Aug. 3, 2008 in the Office of the Prime Minister. See also Attila Shomfalvi and Erez Ronen, “The Government Approved a Biometric Database for the Citizens of Israel,” Ynet, Aug. 3, 2008.
Sheetrit then undertook expediting the legislative process in the Knesset. The bill was submitted to the 17th Knesset, just prior to its dispersion, and given priority over other bills so that it could be voted on and submitted to the Constitution, Law, and Justice Committee.Shachar Ilan, “At the Eleventh Hour: The Law Authorizing a Biometric Database Has Been Approved" (Hebrew), Ha'aretz, Oct. 29, 2009. See also Erez Ronen and Ehud Keinan, “The Biometric Database Bill Passed the First Vote" (Hebrew), Ynet, 29.10.08; Oded Yaron, “The Biometric Law Feels Like We Were High Jacked" (Hebrew), Ha'aretz, Oct. 30, 2008. “What's the rush?” asked Dr. Michael Birenhak, “it is unclear. The bill has serious ramifications for the right to privacy, it is both technologically and administratively complex, it raises intricate legal-constitutional questions and has economic, political and security consequences. The public must have its say on the subject, this ‘high jacking’ was inappropriate.” See Michael Birenhak, “Biometric Database? No Thanks" (Hebrew), Ynet, Oct. 31, 2008. Once the Knesset dispersed, its members were preoccupied with primaries and the upcoming elections—but Sheetrit was “bound and determined to see the law enacted during the recess.”Shachar Ilan, “Sheetrit: Passing the Big Brother Bill into Law before the Elections" (Hebrew), Ha'aretz, Dec. 4, 2008. See also the Association for Civil Rights’ petition to the Knesset Chairmen and the Constitution Committee Chair, ACRI, Nov. 10, 2008; and the petition by the Council for the Protection of Privacy to the Constitution Committee Chair (Hebrew), Dec. 4, 2008. The Association to the Knesset: “Do not hold an expedited discussion concerning the biometric database bill" (Hebrew), ACRI, Dec. 11, 2008. This maneuver was hindered by the Constitution, Law, and Justice Committee Chair, Prof. Menachem Ben-Sasson.When proposing the bill for its first vote on the floor, MK Sheetrit requested that the Knesset, “pass the bill on to the Knesset's Constitution, Law, and Justice Committee in preparation for the second and third votes" (Hebrew). See the minutes of the 271st session of the 17th Knesset, Oct. 29, 2008, pp. 79, 82. This request was justified when taking into account the many ramifications that the bill could have for constitutional rights. Yet later Sheetrit would claim that it was not constitutional ethics that motivated him: “It was personal….the correct place for this bill is the Science Committee, I did not transfer it to the Science Committee for one reason: I had received, in person, a promise from the Chair of the Constitution Committee that he would dedicate himself to the bill day and night, but, unfortunately, he fell sick. There is nothing constitutional here. There is something completely personal. It was my goal to finish the bill as fast as possible in order to start issuing the cards.” See the minutes of the July 9, 2009 session of the Joint Committee (Hebrew), p. 83. Prof. Ben-Sasson is indeed a very industrious parliamentarian, and he made sure that his political obligation as a representative of the coalition would not affect the level of discussion taking place in the committee he chaired. It is possible that he got sick, as Sheetrit said, but it can hardly be assumed that an undercover high jacking of the recess taken during the vote would have added to his health. In the meantime, the Ministry of Interior rushed to sign an ID card system contract, and to issue a tender for a “biometric data” system.“Digitized Photography and Biometric Data Gathering Bid #28/2008,” Publication.gov, Dec. 29, 2009. Avner Pinchuk: “Our data is to be part of the leaky ‘population census.’” See Avner Pinchuk, “The Fight against ‘Big Brother’ Law HQ – Say No to the Biometric Database" (Hebrew), ACRI, Jan. 3, 2009.
The fact that Sheetrit had to relinquish his place in the government after the elections actually positioned him all the better for the biometric battle. He sought an appointment as Chair of the Science and Technology Committee and announced that arrangements had been made with “the Minister of the Interior to have the bill transferred here...I'll deal with it quickly.”“One of the bills, which I hope will be transferred to here, to this committee, that has come to our attention is a bill I initiated as Minister of the Interior, a bill for biometric identification, creating a database. This bill was voted through the first [of three needed for a bill to pass into law in Israel] vote and we intend to apply the principle of legislative continuity to it [According to the rule of continuity, legislative procedures will pick up where they left off in the previous Knesset and create the necessary legislative continuity for the bill to be brought to the current plenum for a vote – a principle by which, despite the changing of the elected body, and in opposition to the default, contrary position, there is no need to restart the whole legislative process as regards a specific piece of legislation]. We have asked the Minister of the Interior to transfer the bill for review to here… at the time I had transferred it to the Constitutional Committee, having had a promise from Ben-Sasson that he would handle it and be done with it by the recess. Now the situation is changed, and I will deal with it quickly… as long as the Biometric Bill does not pass, we cannot start issuing the new IDs and passports. We have already signed a contract with HP to manufacture biometric ID cards, which are crucial to Israel.” See the minutes of the May 6, 2009 session of the Science and Technology Committee (Hebrew), pp. 4-5, 7. In order to pressure the government to apply the Knesset's “rule of continuity” to the bill, he copied it word for word and submitted it as a private bill.Bill for the Inclusion of Biometric Means of Identification within Identification Documents and within a Database, 2009, Private Bill Initiative, MK Meir Sheetrit, 1032/18, May 11, 2009. The last obstacle he faced was the opposition of the Chair of the Constitution, Law and Justice Committee, to whom the matter had been referred. Sheetrit’s political acumen aided him in overcoming this minor hurdle.MK David Rotem, the new Constitutional Committee Chair, insisted on keeping the discussion of the bill within his committee, but Sheetrit persuaded MK Eli Yishai, thus winning the support of the Shas faction. In order to placate Rotem, a compromise was reached by which he would agree to have the bill transferred to the Committee of Internal Affairs. See the minutes of the June 8, 2009 session of the Knesset House Committee (Hebrew), p. 8. When the bill reached the desk of the Committee of Internal Affairs, its Chair, MK David Azoulay, declared that it was a “weighty” issue and thus merits the attention of a “joint committee,” headed by MK Sheetrit, “who had originally dealt with and pushed this issue forward, meaning he has experience on the subject.” See the minutes of the June 15, 2009 session of the Committee of the Interior. Rotem’s opinion of this “stunt” can be inferred from one of the objections he filed: “Anywhere where it is written ‘Committee for Science and Technology,’ have it say ‘Constitution, Law, and Justice Committee’ or, alternatively, ‘any committee headed by the former Minister of the Interior and current MK Meir Sheetrit.’ I want this reservation to be made explicit, to be put on the record.” See the minutes of the July 28, 2009 session of the Joint Committee (Hebrew), p. 27.
The Knesset Deliberations as a Paradigmatic Political Maneuver
The questionable nature of Israel’s Biometric Database Law is reflected in the unusual manner in which the parliamentary process surrounding it was accelerated, and in the inexplicability of this acceleration. Deliberation was referred to a special committee headed by Sheetrit—a small team, some of whose carefully chosen members A joint platform for the Committee of Science and the Committee of the Interior. Complex or legally sensitive issues are indeed discussed in joint committees, but due to the above sensitivity or intricacy, these committees have an extended format. This time the Chair of the Committee of Interior declared that “as the subject is of a hefty, unwieldy nature, and the Committee of the Interior has many items to discuss, I had thought it…better if a joint committee might not be too inclusive.” MKs Dov Hanin and Nitzan Horowitz requested that the committee be expanded to include members opposed to the database, but their request was denied: “It is in the best interest of this issue to have a more limited committee.” See the minutes of the June 15, 2009 session of the Committee of Interior Internal Affairs and Environment Committee. were unaware of the appointment.In the words of MK Hamed Amar: “Mr. Chairman, I first found out I was a member of the [Joint] Committee through the press. I did not receive any official nomination, no letter— nothing. I do see this bill as one of the more important bills, and I can see your enthusiasm… [but] I think there is no need to rush. We lived without it for 61 years; it will keep until after the recess… when we can open it up to discussion and profound examination… Most of the articles you voted on were your own.” See the minutes of the July 28, 2009 session of the Joint Committee (Hebrew), p. 8. Extraordinary permission was obtained to hold deliberations on the bill while the Knesset’s marathon budgetary deliberations were under way; meetings were scheduled so frequently that the committee members found it difficult to attend them.In Israel, more so than in most organized western countries, final budget discussions and what is known as, literally the “settlement article” (this is a huge, incredibly intricate “emergency” procedure, which has been continually used over the past decades in Israel, and is an ever-changing “omnibus” for the political deals needed to seal the budget on time every single year) negotiations are incredibly intensive. All the committees are dragged into all night, marathon sessions regarding the far reaching implications hidden in the sections of this article. Thus, they were usually precluded from examining any other issues at such times. However, this was not the only exception. As it dealt with a Joint Committee, it was necessary to coordinate its sessions with those of the Committee of the Interior, which was not done. Permission was even granted to conduct sessions during Knesset discussions. In the U.S. and Canada, such laws are called Omnibus Laws; in French speaking countries, Les Lois Mosaïques. Such laws have a distinctly negative aspect: their mega size, on one hand, and the lack of time to deal with the complicated procedure using regular parliamentary tools. Many of these laws are related to the various Appropriations Acts or to Reconciliation Legislation (English). “I have an uneasy feeling whenever you say the members didn’t show up,” said MK Kavel to Sheetrit, “I know you, you’re a veteran Knesset member and an old hand at political maneuvering…it was during the period of the Arrangements Law. Even for someone like me…it was hard to split myself into more than one person.” See the minutes of the July 27, 2009 session of the Joint Committee (Hebrew), p. 3. See also, Ehud Keinan and Niv Lilian, "Biometric Bill Committee: Where Are the Members of the Committee?" (Hebrew) Ynet, July 21, 2009
During the gala inaugural deliberations, Deputy Attorney General Malkiel Blass urged the Knesset to discuss the constitutional issues involved in creating a biometric database and consider alternatives to it.Malkiel Blass, Assistant Legal Counsel to the Government, was the senior contact in the Ministry of Justice responsible for the biometric database. Appearing before the Knesset, he said: “This committee will have to, among other things, examine the constitutional ramifications and consequences of creating the database…the bill will have to fulfill the requirements of the Basic Law: Human Liberty and Dignity as set out in the section dealing with violation of rights. One must check the purpose of the law, how fitting the solution is, the alternatives and whether, ultimately, we are not here creating an instrument, which is more harmful to human rights than is absolutely necessary.” [Basic Laws in Israel are laws with a somewhat superior status; they enable the Israeli legal system to be a hybrid between civil law and a constitutional system. Specifically, Section 8 of the Human Dignity and Liberty Law, entitled “Violation of Rights,” assumes harm to the rights specified within the statute, and permits it only if it fulfills certain conditions. It is significant that the most senior legal council appointed began by assuming harm to these most fundamental rights]. See “Basic Laws – Introduction.” The Basic Laws of Israel…are a key component of Israel's constitutional law. These laws deal with the formation and role of the principal state institutions, and the relations between the state authorities. Some of them also protect civil rights. While these laws were originally meant to be draft chapters of a future Israeli constitution, they are already used on a daily basis by the courts as a formal constitution. Israel currently functions according to both material constitutional law, based upon cases and precedents (unwritten constitution), and the provisions of these formal statutes. As of today, the Basic Laws do not cover all constitutional issues, and there is no deadline set for the completion of the process of merging them into one comprehensive constitution. There is no clear rule determining the precedence of Basic Rules over regular legislation, and in many cases this issue is left to the interpretation of the jurisdictional system. See “Basic Laws of Israel.” Malkiel Blass: “…I believed the most appropriate place to hold this discussion, as far as the State of Israel is concerned, is not within the bureaucracy as there are many who believe the database to be the right choice, but rather here in the Knesset.” See the minutes of the June 30, 2009 session of the Joint Committee (Hebrew), pp. 10, 15. However, immediately after the opening speeches, Sheetrit seized the opportunity to announce that “on this matter there is no disagreement regarding the concept of the law.”See the minutes of the July 7, 2009 session of the Joint Committee (Hebrew), p 45. From this point on, Sheetrit held marathon discussions; in most cases he allowed the participants to raise any and all issues other than the one that should have been central to the deliberations; namely, whether the envisioned database was a reasonable measure, one whose potential for compromising human rights was justified by the use to which it would be put.See, for instance, the minutes of the July 21, 2009 session of the Joint Committee (Hebrew), pp. 24-25: Nira La'ami [the committee's legal counsel]: “… the issue of the database and all the discussion of alternatives raise a distinctly constitutional question…the balance between the constitutional basic right, which may be violated by the existence of the database…versus the other goals and rationales… we were expected to examine the alternatives, but the chairman chose not to examine alternatives.” Chairman Meir Sheetrit: “True.” See also Niv Lillian, “The Biometric Bill: Sheetrit Did Not Examine Alternatives to the Database,” Ynet, July 21, 2009.
Even during the pressured and restricted discussions held by the committee, doubts were repeatedly raised regarding the need for the database, as well as the wisdom of blindly trusting immature technology that might conceivably prove treacherous or destructive.As Prof. Eli Biham, an encryption expert and Dean of the Department of Computer Science, Technion—Israel Institute of Technology, warned: “We must consider seven times and then another seven times whether a true, profound need for such a database actually exists – since from the moment it has been created, we cannot guarantee that it will not leak, nor can we ever be absolutely certain that it has been completely destroyed.” See Eli Biham, “Fingerprint Database – A Threat to National Security" (Hebrew), Ynet, July 30, 2009. When addressing the Knesset, Biham explained: “Even if the risk is not great, the danger as a result is exceedingly high as well as irreparable. The possibility of criminals utilizing it in order to assume someone else's identity has already been mentioned…and they are sure to develop the technologies allowing them to do just that. Even if now they say it is not easy, given time, they will develop it.” See the minutes of the June 30, 2009 session of the Joint Committee (Hebrew), p.39. From the outset, it was agreed that the database was not urgently needed as a means of preventing ID card forgery.The prevention of identification documentation forgery does not even rest with the use of biometric technology. See footnotes 6 and 48. It is also inferable from that statement of Minister of the Interior, Eli Yishai that as far as he was aware, the use of biometrics was but an addition to the issuing of smart ID cards: “I am aware that the committee, chaired by the former Minister of the Interior, has been promoting the smart IDs, passports, etc., bill. This is a very important matter. It has been postponed… for over a decade…it is being thrown about for the past 15 years. It is a disgrace…now finally it is to be concluded. As to the biometric issue – some people have drawn my attention to it. I am looking into it…”; see the minutes of the July 21, 2009 session of the State Control Committee (Hebrew), p. 4. It was Sheetrit who had postponed the issuing of the documents in order to wrap up the matter due to the urgency of the need for a biometric database. Chairman MK Meir Sheetrit: “…I could have made it easy for myself, could have asked why I even need the database, I want to make the headlines, I'll issue the ID cards… however, despite all that, I came to a decision…to create the database, in spite of all the anticipated delays, and that it wouldn’t happen during my term of office, as I believe this to be both the correct and a crucial thing to do.” Avner Pinchuk: “It was just easier to sell to the public, telling them that if there wasn’t a database, their ID Cards would be fake and their passports worthless.” Chairman MK Meir Sheetrit: “You may be right, but I would rather see this project through to its end…” See the minutes of the July 21, 2009 session of the Joint Committee (Hebrew), pp. 26-27 The sole issue under dispute was whether someone might successfully deceive the state and produce two different identity documents for oneself—whether, in the absence of a biometric database, the chances of this occurring were nonexistent, minimal, or negligible.A biometric database could help prevent impersonation and “double identity assumption"—that is, an impersonation with which one would be able to acquire and issue two identity cards under two different aliases. However, this objective could be realized through other means as well, such as the utilization of personal information already in the possession of state authorities. This is one area in which Israel has a clear advantage over many other countries. Such alternative means should be at the state's disposal in any case, because without them it would be impossible to prevent one from deceiving the authorities during the initial stage of the issuance of the ID cards and allowing him or her to assume almost any identity one chose. See, for instance, MK Sheetrit’s statement as recorded in the minutes of the July 7, 2009 session of the Joint Committee (Hebrew), p. 34. See also Erez Ronen, “The Gathering of Biometric Information—The Database's Soft Belly,” Ynet, July 12, 2009. “There is no estimate as to how impervious to forgery each of these alternative means is, but it is clear that the biometric alternative will not completely eliminate such a threat either.” See, for example, the statement by Yoram Oren, Technological Advisor to the Bureau of Population Administration as recorded in the minutes of the June 30, 2009 session of the Joint Committee (Hebrew), p. 54. Yoram HaCohen, the head of the Technology and Law Department of the Ministry of Justice: “There are very few countries that have as detailed a registry as Israel… it is not for naught that Germany elected to interview people [in order to determine their initial, true identity]. As to my knowledge, the Germans too have an incredibly detailed population registry. We know what the history is here. The Israeli solution must take into account the fact that the Ministry of the Interior retains a lot of information regarding citizens in order to enable extensive, efficient inquiry—thus identifying those impersonators. I don't want to go into detail regarding all the means at our disposal, but it is possible.” See the minutes of the June 30, 2009 session of the Joint Committee (Hebrew), p. 62. See also the statement made by Dr. Omer Tena in the minutes of the June 30, 2009 session of the Joint Committee, p. 63. The committee members were surprised to discover that even the Ministry of Interior experts had determined that the desired goals could be achieved without a “biometric” image database and the increased harm to citizens that it entailed.“The combination of a database containing biometric detail photography of all the population and an ever widening deployment of security cameras in public places will enable constant surveillance of every citizen from the moment he leaves his home. Where once it would require many hours of intensive work to scan all the accumulated date of security cameras, it would now be possible for a computer to scan all of the material in an instant, identify suspicious faces, and track their movements. Paradoxically, public objection to the database, such as it is, is concentrating its fire against the fingerprints requirements. Many seem to be asking themselves: ‘why should I surrender my prints, am I a suspect in some crime?’ Yet, fingerprints, unlike facial pictures, do not permit for constant, oppressive surveillance by the state.” See Omer Tena, “The True Danger Lies with a Picture” (Hebrew), The Marker, Oct. 15, 2009. See also Ilan Getenyu, “The Face Says It All” (Hebrew), Ynet, April 27, 2003; and Richard Mirs, “Nowhere to Run to” (Hebrew), Ynet, May 24, 2009. But Sheetrit, more resolved than ever, quelled the murmurs: “Committee members, I’m not going to reopen the deliberations … There will be a database, end of story, people, it’s not open to discussion.”See the minutes of the July 23, 2009 session of the Joint Committee (Hebrew), pp. 5 onwards. Also see ACRI’s letter to the Chairman of the Knesset (Hebrew), Aug. 10, 2009, p. 10.
At the beginning of the deliberations, the government representatives involved in this bill extolled the extensive and meticulous administrative work that had gone into bringing a suitable and balanced plan before the Knesset, one that would also safeguard basic rights.MK Meir Sheetrit: “The discussions regarding this bill did not go easy. The discussions went on for almost a year; participants included the Ministry of Internal Affairs and Ministry of Justice specialists from various fields. We were not hasty in preparing the bill. The intention was to address it thoroughly, taking all parameters into account, all the various fears it could engender in the people. That is why we were not in any rush. The bill was set out during a year of work by many people dedicated to working on it…” See the minutes of the June 30, 2009 session of the Joint Committee (Hebrew), p. 5. However, during the course of the discussions, the bill was repeatedly found to contain worrisome inconsistencies and deficiencies.Thus, for instance, it turned out that certain critical stages of the processing of biometric data were not sufficiently clarified, nor were they represented in the bill; it does not specify the fashion in which the identification documents were to be manufactured (that is, it ignored the sensitive nature of the transfer of information for that purpose); there was no reference to the somewhat unclear process of issuing official passports for citizens living abroad; the treasury had not yet addressed the question of the requisite funding of the mechanisms vital to the securing of sensitive data; and so on for many different issues. We may well assume that this represents but the tip of the iceberg: the position of the government was upheld by the Chairmen, Meir Sheetrit, as well as a battery of governmental officials, all of which were singing the praises of this new project. Taking into account the obvious advantage of both expertise and experience in dealing with the subject matter over those who objected to and requested further explanations, one can only assume that a slightly more balanced discussion would have revealed a great many more points of contention and faults. Thus, after an exhausting day of Knesset deliberations, the government representatives would rush off to internal discussions that frequently continued late into the night in an effort to plug the holes with which the bill was riddled. New provisions, many of them entirely novel, were crammed into the text during these nocturnal interludes and placed on the committee table minutes before it convened to discuss them the following morning.See, for instance, the exchange held at the start of one of the sessions: Avner Pinchuk: “I would like it to be noted that we have just now received the amendments made by the Ministry of Justice after a week of hard deliberation. They toiled over these points for a week as the material is both difficult and complex. I, at least, find it hard to improvise an opinion on something I have not yet read. I have just this moment sat down on this chair. Sir may be well versed in all relevant statutes touching upon this material; I, on the other hand, usually require some sort of time to ponder, and no professional, at least in my profession, if he is a responsible individual, would not support something off the cuff…” Meir Sheetrit: “There is no improvisation here. The Ministry of Justice was constantly peeking over their shoulder.” Avner Pinchuk: “Yet I am required to respond with an improvisation.” Meir Sheetrit: “You can respond or you cannot respond, up to you.” Avner Pinchuk: “What is the meaning of the discussion?” Meir Sheetrit: “The meaning of the discussion is breaking the law. Sir, stop interrupting me.” See the minutes of the July 19, 2009 session of the Joint Committee (Hebrew).
Heavy rhetorical artillery—the security situation—was employed to justify the accelerated proceedings and the database plan itself. Sheetrit repeatedly warned that “from the State of Israel’s point of view, the danger is simply terrible”—“a huge danger” that kept him from “sleeping at night.”See the minutes of the June 30, 2009 session of the Joint Committee (Hebrew), pp. 4, 48. This emergency and catastrophe discourse blurred the distinction between the need for the rapid production of new and reliable identity documents, and the controversial biometric database plan—a plan that had failed to generate enthusiasm even within the country’s security establishment.Ehud Keinan, “Counter-Terrorist Department: The Biometric Database Is Not a Necessity” (Hebrew), Ynet, May 7, 2009. At a conference of the Israeli Association for Information Security held on August 12, 2009, the representative of the ministry made clear his office’s position by which “the Ministry of Defense does not require the biometric database, we only wish to know that there is no double assumption [of identity].” [When] someone tried to correct him….but he would immediately add ‘the database is not a security issue in any way.’ He also stressed it by saying ‘the database is not a security issue at all.’ He was than quoted repeating it and saying ‘the database is not a goal unto itself but rather a means to the end of preventing double assumption’”; Doron Ofek, “Can Israel Protect Its Informational Property” and “Can Israel Protect Its Info Data” in the Freedom of Speech Blog (Hebrew), Aug. 12, 2009. “You are in danger,” Sheetrit lashed out at his critics, “Jews and non-Jews, all sorts of riffraff are helping terrorists escape. You’re not the ones who have to be concerned by it …”Or Hirshauga, “Unprotected Biometric Databases Exist in Israel Encompassing Millions of People” (Hebrew), The Marker, Aug. 13, 2009; See also “MK Sheetrit: ‘It is unacceptable that due to a lack of technological means which exist in most western countries, the citizens in Israel are to be vulnerable to identity theft of the theft of their personal documentation. The theft of a passport or an ID card has widespread consequences, including threats to security.’” See the Ministry of Interior Press Release, “The Government Approved the Minister of the Interiors’ Initiative: The ID card, Travel documentation and biometric database bill,” April 8, 2008. See also The Knesset Science and Technology Committee, “Issuing of Biometric Documentation” (Hebrew), Knesset Press Release, June 30, 2009: “The issuing of Biometric ID is a crucial step for Israeli national security. Israel is open to the four winds, a terrorist can enter, live her quietly undisturbed, receive a stipend and be an Israeli for intents and purposes. The objective of the issuing of these documents is to distinguish who is really Israeli. In many of the cases we don’t know and that poses a threat to national security.” See the minutes of the July 23, 2009 session of the Joint Committee (Hebrew), p. 90. See also Adar Shalev, “Fingerprint Database Bill on Its Way to Final Approval” (Hebrew), Ynet, July 23, 2009.
In reality, the Knesset deliberations were dealing with a fait accompli: “I initiated it as Minister of the Interior and I think Israel needs to be among the world’s most advanced nations in this field, and we studied the issue in depth for over a year with all of the government ministry representatives.”See the minutes of the July 21, 2009 session of the Joint Committee (Hebrew), p. 12. From former Minister Sheetrit’s perspective, the matter had already been exhaustively dealt with by the original planning cadre in the government; he had no great desire to reexamine it in the framework of Knesset deliberations. His attitude toward cautionary testimony by experts was one of derision; he referred to such warnings as “paranoia.”“MK Sheetrit, the committee chair, discussing the bill within the Knesset, attacks academics….you are scaring the public for naught!” See Niv Lillian, “Yishai Agrees to Have a Team of Experts Put Together to Examine the Database” (Hebrew), Ynet, Aug. 12, 2009. MK Meir Sheetrit: “The paranoia being spread in public regarding the foundation of the biometric database—unjustified.” See People and Computers, Sept. 15, 2009. See also Adar Shalev, “MK Sheetrit: Enough with the Paranoia Concerning Biometric Identification” (Hebrew), Ynet, July 9, 2009. “All these fears that people have, I am willing to say that it is a bit paranoid. In this instance all possible steps were taken to avoid any possibility for any sort of breach.” See the minutes of the July 9, 2009 session of the Joint Committee (Hebrew), p. 22. “Stop it with the paranoia! We are not the first in the world to create biometric databases," the Joint Committee, ibid, p. 35. “[…] and I think these scares you transmit to the public are completely untrue. There is no danger inherent to this database.” See the minutes of the July 12, 2009 session of the Joint Committee (Hebrew), p. 57. “We will force all residents to go to the Ministry of the Interior in order to receive their documents. They will stand in line. Friends, there is no need to exaggerate. There is no call for this paranoia. One goes, hands in a document, I do not accept your concerns. They will hand in the document, it seems perfectly fine to me.” See the minutes of the July 19, 2009 session of the Joint Committee (Hebrew), p. 54.
This is not the first time, and may unfortunately not be the last time, that a complex and risky high-tech project is being presented to the Israeli public as a fait accompli. A year before he took on the biometric database project, Sheetrit rebuffed a group of distinguished scientists who warned against his plan to institute electronic voting. He declared that “it is disgraceful that in Israel, a high-tech power, we can’t manage something this simple and elementary … I’m someone working to promote electronic voting.”It is interesting to note that, much like in the case of the biometric database, there too professional criticism focused less on the system security and more on the excessive force put in the hands of its “keepers” – those comprising and operating the mechanism of the State. See Avner Pinchuk, “Computerized Elections and a Biometric Database Are Not a Gadget” (Hebrew), Ynet, Dec.15, 2008.
It is hard to understand what lies behind Sheetrit’s infatuation with and determination to advance centralized information technologies. In any case, this fixation is likely to serve as a major impetus for future activity on his part: “I’m well-informed on technological issues. I also have a scientific background… The Science Committee is not an opposition committee; its role is to try to advance things, and that’s my intention …”See the minutes of the May 6, 2009 session of the Science and Technology Committee (Hebrew), p. 4. Indeed, during the Biometric Database Law deliberations, Sheetrit was already targeting yet another project for active involvement—a national health registry that would house confidential medical information on all of the country’s citizens and would be administered by the Ministry of Health. This plan has been taking shape within the administration and in the absence of any public debate regarding alternatives of similar efficacy and less intrusiveness.See Omer Tena, “The Medical Records Are Ill” (Hebrew), The Marker, Feb. 17, 2009. See also Tali Nir, “Big Brother Is Dressed in White” (Hebrew), ACRI, Aug. 28, 2008; and ACRI's remarks regarding the national medical record bill, ACRI, July 10, 2008. This plan will also one day require a seasoned politician to promote it and silence opposition to the idea of making every last iota of citizen information available to the state. “Big Brother” needs devoted and energetic followers.
Part II: Political Theory and the Biometric Database Law
There is no doubt that the recent legislation has presented the Israeli public, the media, and the regulatory entities with a formidable challenge. The complexity of the matter did indeed limit public and media discussion, enabling supporters of the initiative to advance their cause using clichés and vacuous arguments, which the public was at a disadvantage to handle. “It is easy to comprehend the arguments in favor of the biometric identification bill,” wrote Hanoch Marmeri, “it is the objections to it which are intricate and difficult to understand. Until quite recently I myself, to my shame, did not delve into these concerns raised against it. But from the moment that I did, my position is clear: one must object to the act of collecting the biometric data. MK Sheetrit's wildly racing push forward of this bill should most probably have been stopped at a much earlier stage. But other than the consistent reports given in the computer section of Ynet… the media chose not to tackle the subject in a coherent manner. It was the blogsphere, which dealt, with some heat and passion, with the subject…but the large quantity of available information on the subject did not set off the expected eruption.” See Hanoch Marmeri, “When Your Fingers Will Do All the Walking” (Hebrew), The Seventh Eye, July 29, 2009. The issue’s complexity is not limited to the esoteric nature of the technology involved, its global nature, the need for coordination between its various elements, and the varied security and economic organizations that would use it. Rather, it lies in the disappearance of context. If globalization has turned the Aristotelian “whole body” into the “whole body” of universal democracy, then it has also proven the efficacy of a state of detachment between the political system and the citizen, which serves the system’s purposes. Accelerated privatization (as in the case of California’s deregulated electricity industry) and the slashing of health, education, and social service budgets by Western governments have shown the early 21st century state to be more interested in a “monopoly on violence,” as Walter Benjamin and Hannah Arendt termed the phenomenon half a century ago, than in the welfare of the individual citizen.In his essay, “A Critique of Violence,” Walter Benjamin writes: “The legal order [of the state, N.L.] dedicates itself to maintaining that in any area in which an effective striving by the individual towards his objectives may be accompanied by violence, there shall be set legal purposes that only the legal governance is allowed to realize in this [violent] way." Arendt, in a later essay, writes: “Freedom is located in the realm of the social, and force or violence becomes the monopoly of government,” Hannah Arendt, The Human Condition (Chicago: The University of Chicago Press, 1958), p. 31. In order to appreciate the gravity of the situation, one needs to rethink certain key concepts in contemporary political theory, which is increasingly sensitive to biopolitical instruments of control. If, in fact, there is a growing worldwide tendency toward greater intrusiveness by “large bodies” (governments, large financial organizations, organized crime) vis-à-vis “small bodies,” then Israel’s current “systemic failure” clearly demonstrates that the impetus to undermine democratic values comes mainly from the center of the political map. Those responsible for accelerating the Israeli biometric surveillance legislation are classic centrists, hailing from such political parties as Kadima, the Likud, Shas, and Labor. Only a minority of those affiliated with smaller parties support the legislation, which is more likely to be perceived by non-centrists as yet another repressive measure taken by the majority against the minority.
Theory that is centered on a politics of the body (starting with Michel Foucault), views the growing focus on individual body parts as a political system geared toward strengthening the state at the expense of the citizen. During the 1970s, Foucault wrote about the way in which the political gaze had shifted from the individual body as a whole to its component parts, pointing out that this denoted a practice of separation and detachment from any broader context. Thus, Foucault contended, the entity in “power” identifies the individual not on the basis of his or her conscious capabilities as a citizen, not via the “whole,” but rather by the medical or political functions of his or her body.In order to follow the development of this idea more closely in Foucault's writing, as well as to obtain a philosophical-political background, see Friedrich Balke, "Der Körper des Philosophen im Zeitalter der Biopolitik, " in Mirjam Schaub and Stefanie Wenner (eds.), Körper-Kräfte: Diskurs der Macht über den Körper (Bielefeld: Transcript Verlag, 2004), pp. 133-159 He referred to the growing trend toward interfering with people’s biological functions as “biopolitics.” In his view, the regulation of biological functions at the individual and population-wide levels constitutes “population biopolitics.” The essential categories of life and death—the symbol of sovereign power—have now become carefully encompassed by an administration of bodies and an account management of life itself.Michel Foucault, The Will to Knowledge: The History of Sexuality, Vol. 1, trans. Robert Hurly, (Harmondsworth: Penguin, 1979), pp. 133-160. See also in Michel Foucault, The Will to Knowledge: The History of Sexuality (Hebrew), Vol. 1, trans. Gabriel Ash, Resling, Tel Aviv, 1996, p. 94. “It seems to me,” he says in one of his last seminars, “that the analysis of biopolitics can only get under way when we have understood the general regime of this governmental reason… of economic truth in the first place, within governmental reason.”Michel Foucault, The Birth of Biopolitics: Lectures at the College de France 1978-1979, trans. Graham Burchell (Hampshire: Palgrave McMillan, 2008), p. 22. According to Foucault, modern government has turned the Aristotelian whole body-political community relationship from one in which man is regarded as a “political animal” to the opposite: “Modern man is an animal whose politics calls his existence as a living being into question.” Michel Foucault’s, La Volontè de Savoir: Histoire de la Sexualité (Paris: Editions Gallimard, 1976), p.188, is quoted in Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller- Roazen (Stanford: Stanford University Press, 1998), p. 3.
Taking Foucault’s cue, biopolitical criticism began to focus on the relationship between the individual body and the government, particularly in a biological “accounting” context. Georgio Agamben noted during the late 1990s that it is precisely the democratic governments that have been spearheading anti-democratic trends over the past few decades. To make his point, he looked at the history of the “state of exception,” particularly that declared in the U.S. in response to 9/11.Giorgio Agamben, State of Exception, trans. Kevin Attell (Chicago: University of Chicago Press, 2005).After biometric surveillance methods were instituted in American airports, Agamben refused to return to the U.S.For a discussion of Agamben’s refusal, see Malcolm Bull, “States Don't Really Mind their Citizens Dying (Provided They Don't Do It at Once): They Just don't Like Anyone Else to Kill Them,” London Review of Books 26 (24) (16 December, 2004), pp. 3-6. “Biopower” enables governments to map, collect, and store data on the bodily components of individuals, even without their knowledge, while the “state of exception” enables those with a monopoly on violence to legitimately annul the right to privacy.This has recently been coherently theorized in Andreas Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt (Cambridge: Cambridge University Press), 2008. Accordingly, the current literature on biometrics emphasizes key concepts related to the “isolated,” “unique,” “distinguishing,” “identifying,” “ratifying” body part, and those features that give the system its ability to identify a body part “automatically.”See the lecture by A. Cavoukian, Information and Privacy Commissioner, Ontario, Canada, that deals with “the uses of consumer biometrics.” She opens the discussion with essential biometric use and utility versus threat-inherent terminology See Ann Cavoukian, “Consumer Biometric Applications: A Discussion Paper,” September 1999. Isolating body parts from their natural environment in order to accurately identify individuals entails a distancing [of biometric technology from] human memory, which is slower and weaker.Ibid. p. 16. However, this distancing has other ramifications as well. For example, it is possible to operate automated identification systems in a continuous and undetectable manner—hence “the danger that control over personal information will be lost and that personal autonomy will be restricted altogether… The fear is that each element of “choice” will ultimately disappear from the sphere of identity.” Ibid. p. 32. As these technologies become increasingly available to the security sector and to other markets, personal “anonymity” comes nearer to a point of extinction. As one Australian expert on biometrics puts it, “In many cases, the nature of the technology will limit a person’s ability to remain anonymous. For example, if the telephone network relies on voice recognition for access, then it will no longer be possible to use the telephone anonymously, not even a pay phone.”Malcolm Crompton, “Biometrics and Privacy: The End of the World as We Know it or the White Knight of Privacy?” Australian Journal of Forensic Sciences 36 (2) (July 2004), pp. 49-58: 2002.
One of the major dangers of biometrics stems from the combination of political-security usage and commercial usage, and the ease of disseminating such a system. At this point in time, there is no government that does not employ commercial companies for the use, management, and construction of biometric systems. This is the method employed throughout the West, especially since the events of 9/11. As demonstrated in the literature published since that time regarding surveillance technologies, most of the biometric systems built since 2001 actually rely on commercial surveillance systems that were already on the market, often “grey” markets, such as gambling casinos. Thus, one of the largest biometric technology companies, the Canadian firm, Imagis Technologies, which developed a biometric identification system for American airports and the FBI, started out by developing digital identification systems for casinos.For information on this company and others of its kind, see David Lyon, Surveillance after September 11 (Cambridge: Polity Press, 2003), p. 78. (See in Google Books.) It is unnecessary to explain why the combination of political-security supervision and commercial identification and supervision is soon likely to reinforce the “surveillance society,” the society in which Foucault’s "panopticon" (ability to observe all) is integrated into what Thomas Mathieseon called “synopticon” (the viewer society), the society in which the many observe the few.”Thomas Mathiesen, “The Viewer Society: Michel Foucault's ‘Panopticon' Revisited,” Theoretical Criminology 1 (2) (1997), pp. 215-234. The close relationship between political oligarchs and gigantic corporations requires “markers” to isolate and convict individuals in order to gain legitimacy. Since this is a “system that doesn’t cope well with failure,” the biometric system assumes the improbability of incorrect identification or undemocratic use of its tools—two assumptions that even in the brief period since the beginning of the 21st century have turned out to be unrealistic.Crompton, "Biometrics and Privacy," p.11
In the professional literature, especially in the wake of the events of 9/11 and the passage of the American Patriot Act,Acronym for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act." This bill passed into law with a huge majority in Congress on the 26 October 2001, just over a month after the attack on the World Trade Center and the Pentagon. It authorizes the executive branch to utilize an incredibly wide range of surveillance, tracking, wiretapping, and information gathering methods. Not only have these powers of state been severely criticized, but the jurists who supported the bill are under rigorous public attack as well as threat of prosecution. it quickly became apparent that the Pentagon’s demand to get its hands on any form of “obtainable information,” was directed primarily at information from commercial companies. In this sense, the “trickling” of information to undesirables, whether “on its way back” to commercial bodies or through its misuse by the authorities, is not surprising to anyone. Thus, for example, one of the main improvements carried out on the Pentagon’s Total Information Awareness Program was based on existing software for monitoring shoppers in supermarkets—surveillance by credit card companies and telephone companies, which is conducted by connecting to the national transportation network that photographs traffic violators and to the police database network.
As David Levin points out, the authorities have used this data to monitor “terrorism suspects” and to break into the houses of those who, in most cases, were nothing more than Arab students studying at American campuses. In December 2002, most businesses were prepared to provide authorities with confidential details about their clients even with out a court order.Lyon, Surveillance after September 11, p. 57. The National Research Council has, at the governments' request, examined the Total Information Awareness program. In a report it issued approximately a year ago it was stated that the program is not effective in reaching the objectives for which it was formed, while threatening the core values of American society. See Avner Pinchuk: "The Mining of Personal Information as a Counter-Terrorist Tool-a-la-Failure" (Hebrew), The Little Brother, Oct. 7, 2010. See the report of the Committee on Technical and Privacy Dimensions of Information for Terrorism Prevention and Other National Goals, National Research Council, "Protecting Individual Privacy in the Struggle Against Terrorists: A Framework for Program Assessment," (Washington D.C.: The National Academies Press, 2008). See also Declan McCullagh, "Government Report: Data Mining Doesn't Work Well," Oct. 7, 2008. See also ACLU, "ACLU Hails DHS-Funded Report Condemning Data Mining," Oct. 8, 2008 At the same time, the banking system relied on the experience gained by security authorities in order to improve its means of identification and installed biometric identification systems—often without properly notifying the customers.Lyon, Surveillance after September 11, p. 71. In this context, Levin explains, “it is a tremendous mistake to view the events of September 11, as the media encourages us to think, as an essential “change”… The collapse of the Twin Towers was a turning point not in how we use existing surveillance technology, but in terms of public legitimacy for employing these technologies.”Ibid, p.14: "One huge mistake, encouraged by media accounts, is to think of 9/11 as generating surveillance responses from nowhere. Moreover, there is presently a growing volume of literature that argues that the essential changes in American legislature—the endless expansion of national authority—was planned by Dick Cheney and George W. Bush long before the attacks. According to the book by Charley Savage, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy, Cheney was one of the principal ideologues behind expanding the president’s powers as the “commander-on-chief” even during the Reagan administration.“Through its fights to expand presidential power at the expense of the legislative branch, the [Reagan, N.L] White House would find no greater ally in Congress than Representative Cheney.” Charlie Savage, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy (New York: Little, Brown and Company, 2007), p. 50.Without any clear religious or political ideology, Cheney turned executive authority, along with uncontrolled privatization, into the revolutionary banner of the neo-conservative regime and for this he was criticized by the old guard, conservative ideologues.The best known criticism in this context would be that of Cheney and Bush being termed “more democrat than republican” by Pat Buchanan, as they had abandoned the classic conservative non-intervention doctrine in favor of aggressive involvement in world affairs. For a summation of this opinion, see Pat Buchanan, "Pat Buchanan Compares George Bush to Harry Truman," Sunlit Uplands, Jan. 14. 2009.
One interesting phenomenon that characterizes the gradual distancing from democracy is the growing “depoliticization” of the most extreme supporters of the change, usually classic centrists. The Jewish-German philosopher, Franz Neumann, noticed the relationship between an “apolitical” approach and the emergency measures enacted with the rise of Fascism in Europe.See Franz Neumann, The Rule of Law: Political Theory and the Legal System in Modern Society (Leamington Spa, UK: Berg, 1986). For a treatment of this theory, see Lyon, Surveillance after September 11, p. 44. The “surveillance society” and “biopolitics”—which Michel Foucault and Gilles Deleuze warned against—emerged against the background of the growing connection between the strengthening of economic organizations and the weakening of the social-democratic regime, or the system of checks and balances. The State of Israel, which is itself becoming further removed from social democracy, is perceived here as a relevant example. This issue was also raised during deliberations regarding the Biometric Database Law itself, and not incidentally, in comparison with Germany.
Compared to Israel, due to its national-socialist past, it is actually Germany that insists on strict preventive measures. As explained to the Knesset by the Deputy Attorney General: “In Germany they have biometric measures in the passports, but after that they destroy the photograph because they don’t want a central database, and they have their historic reasons for being suspicious of concentrating power and authority. In Germany there are very many things that are decentralized precisely because of their history.”See the minutes of the June 30, 2009 session of the Joint Committee (Hebrew), p. 15. The question is why isn’t the historical experience and the unwillingness to concentrate information relevant for Israel?This question was also raised in a conference of the Jewish Anti-Defamation League in the U.S., during which the Secretary of the Homeland Security announced the department’s intention to scrap the Real I.D. project (a project similar to the one planned by the Israeli Ministry of Internal Affairs). Answering a question from the crowd, the Secretary of the Homeland Security stated: “Following the holocaust, many survivors were extremely concerned by anything relating to a country's I.D. documentation. Many Jews were even reluctant to circumcise their children for fear that the government would be able to recognize them easily. How are we to balance between the need to identify people in order to maintain our safety and the belief that Americans have the right to privacy and to an anonymous life without the government knowing anything about them or their actions?” See the DOH Press Release, April 22, 2009. As professor Eli Biham, Dean of the Computer Science Faculty and encryption expert at the Technion, said: “I would add that, on an ethical level, in light of Jewish history, I would expect Israel to be a leader in an attempt to ban the gathering of biometric data from citizens worldwide, speaking loud and clear its negative opinion on the harm of gathering such information. Sixty years ago, we demanded that the world reduce the amount and type of information kept on citizens in the democratic world. I am shocked that the state of the Jewish people is a leader in the gathering of such information, creating a precedent for the rest of the civilized world.” See Eli Biham, “The Fingerprint Database: A Threat to National Security” (Hebrew), Ynet, July 30, 2009. Is the former “victim” immune from the mistakes of the present and the future?
In Israel, just like in other control technologies, the biometric database flies on the wings of security rhetoric and technological machismo, which focus on ability and performance rather than on what is correct and proper. But sadly, the debate surrounding this issue has also focused primarily on the question of whether “a biometric database leak is worse than the Chernobyl disaster” or whether it isn’t the same as a nuclear leak.See the minutes of the June 30, 2009 session of the Joint Committee, p. 17. Thus Minister Michael Eitan expressed himself when appearing before the Joint Committee. Eitan was the only one to show any sense of public responsibility by making considerable effort both with the government and the Knesset to stop the unchecked passage of the bill and allow for an in depth, appropriate discussion and investigation of the matter. See for example Ehud Keinan, “Minister Eitan: ‘Stop the Biometric Database’" (Hebrew), Ynet, July 18, 2009. See also Niv Lillian, "The Biometric Database Leak—Worse than the Chernobyl Disaster" (Hebrew), Ynet, June 30, 2009. Undoubtedly this is a realIn the explanatory section of Article 8 of the Bill, the government confirms that the database “potentially” threatens privacy as a result of “experience with information leaking from databases. The exposure of biometric information, ‘unchangeable’ by its owner…may cause irreparable damage to those exposed.” Indeed state authorities and the Ministry of the Interior, in particular, have a very poor track record when it comes to protecting personal information in public databases. The census bureau database, termed “crucial” by the security forces, has leaked a number of times, and is currently available to anyone surfing the net. This and other failings are at the base of the State Comptroller and Ombudsman statement by which “the population authority has failed to protect personal privacy.” See the Ministry of the Ombudsman’s Annual Audit 59b  (Hebrew), p. 859 and p. 193 of the summary. See also Lital Dattal, “Personal Information about Israeli Citizens Vulnerable to Attack on the Ministry of the Interior and the National Insurance Institute Servers” (Hebrew), The Marker, May 6, 2009; Ehud Keinan, “The State Ombudsman: Complete Failure in Protecting the Privacy of Citizens” (Hebrew), Ynet, May 6,2009; Jonathan Leese: "Police Unable to Trace Those Leaking from the Census Registry” (Hebrew), Ha'aretz, May 04, 2009; and Or Hirsheuga and Bar Ben-Ari, “The Law and Technology Authority: Census Registry Leakage Used for the Collection of Debts” (Hebrew), The Marker, Sept. 22, 2009. and serious Though the State has promised to put in place an unprecedented amount of security measures, technology experts, and information security warn that, sooner or later, the biometric database will also be breached. Such a breach would cause damage of “catastrophic” proportions both to private citizens and to national security. Eli Biham: “Even if the risk is not a big one, the threat and damage which would result are very great indeed, as well as irreparable.” See the minutes of the June 30, 2009 session of the Joint Committee (Hebrew), p. 39. Omer Tena, security information specialist and member of the Public Council for the Defense of Privacy: “Even the low probability of it happening, because the damage would be so catastrophic, is worth preventing if the same goal can be achieved by different means.” See the minutes of the June 30, 2009 session of the Joint Committee, pp. 47-48. Doron Shekmony, information security expert and former advisor to the governmental computerization project, Tehila: “It takes but one malfunction, one failure for the biometric information of all the population of Israel to be revealed – fixing that damage would take 80-90 years; that is, we all have to die once for the information to become irrelevant.” See the minutes of the June 30, 2009 session of the Joint Committee, p. 26. threat, but in contrast with the government’s claim, a biometric database does not carry merely the “potential” for damage;Assistant to Government Legal Counsel, Malkiel Blass: “These claims do not necessarily point to certain harm to the right to privacy or any other right, but rather they refer to the fear of potential harm. The level of probability is not completely clear…that is why, when dealing with unverified fears versus quite certain tools we are about to give, I believe that the balance of the scale would show that we would pass the constitutional test [mentioned above, the constitutional test, as well as the exact wording here, which is a result of judicial interpretation of that test, are part of the Basic Law: Human Dignity and Liberty]. See minutes of the June 30, 2009 session of the Joint Committee, p. 14. Meir Sheetrit: “Your approach would indicate that the creation of the database is an invasion of privacy…I reject that stance completely. There is no invasion of privacy in having one’s fingerprints in the database. There is an invasion should that database be breached.” See the minutes of the July 21, 2009 session of the Joint Committee, p. 25 it causes real damage to privacy, human and other rights, and democracy.
The transition from the “lofty” critical theory to the “private case” of Israel seems like a smooth transition, but most of the critical work and “contextualization” of the law’s risks is being conducted by outside critics. The legislator does not take into account the dangers hidden in an anti-democratic law such as this. As Michael Birnhack wrote, “The government and Knesset members have recently been infected with a dangerous virus: database fever.”Michael Birenhack, “The Nosy Brother” (Hebrew), Globes, July 16, 2008. Dr. Birenhack specializes in the intersection between law and technology and is a former member of the Legal Council for the Protection of Privacy and Co-Director of Computers and Ethics at the Mishkenot Sha'ananim Ethics Center in Jerusalem. The flood of initiatives to establish databases and expand their uses is accompanied by numerous intentions, “both good and not-so-good, but the path is leading us to a less democratic and less efficient society.” Ibid.The digital revolution allows us to easily collect a great deal of personal information and to design technological systems that can process it, but database retrieval and cross-referencing can add another dimension to the existing information that results in a greater invasion of the privacy of the citizens whose information is being accessed.Daniel J. Solove, “Access and Aggregation: Public Records, Privacy, and the Constitution,” Minnesota Law Review 86 (6) (2002).
Databases are a resource for power and control. The question is not merely whether the state will be able to safeguard this resource from external agents, but also “who will safeguard the guards.”“The government has a certain staff of experts…who serve, first and foremost, the interests and the needs of their client, that is—the governmental apparatus. It is their job to construct efficient information systems, which will help the various bodies of government carry out their work while making sure that sensitive information does not fall into the wrong criminal hands. But this is not enough as even within the governmental apparatus there are occasions of abuse of power and information. The interests and the needs of the government are not always identical to those of the ones governed. It is true that in a democratic country there exists a certain overlapping, but every social contract and each democratic regime is based upon recognition of the constant tension in existence between them. See Avner Pinchuk, “Who Do the Creators of the Fingerprint Database Serve?" (Hebrew), Ynet, Aug. 27, 2009. Given the sensitive nature of public databases, although they are established for specific and limited purposes, they very quickly become a target for constant pressure from public and private entities, which leads to extensive use of the information.The extension of the use of personal information databases beyond their original scope is a common phenomenon known as “functional creep.” So it was that the sensitive database of the Money Laundering Prohibition Department (part of the Ministry of Justice), which was initially approved as a tool to combat dirty money (black market capital), has been extended to be used to fight mostly much less serious offenses. As far back as the initial discussions held before the Constitution Committee, it was warned that: “There exists here a dynamic by which we gradually accept existing conditions and then take them to the next level.” Indeed over the few years, which have passed since the bill was confirmed, members of the department have repeatedly turned to the Knesset, abusing their expertise and abundance of knowledge in order to receive information, slowly wearing down the defenses supplied by the legislative branch against the natural hunger for power of the executive branch. See Avner Pinchuk, “Gnawing Away at the Defense of Privacy: The Regulations for the Prohibition of Money Laundering” (a letter to the Chairman of the Constitutional Committee), July 4, 2006. In this case, this process began at a particularly early stage; the biometric database was planned in order to address the needs of the Ministry of the Interior, but even before it reached the Knesset, the police had managed to get into the picture as well.See footnotes 16 and 30. As previously mentioned, the private sector is also waiting for the day when it will be able to “piggyback” the governmental biometric project. Expanded usage is often in contravention of the law. The ink wasn’t even dry on the Communication Data Law when the Knesset Constitution and Law Committee discovered to their amazement that the police had exceeded the far-reaching surveillance powers that the law grants it.See Ehud Keinan, "A Visit to the Knesset: The Police Exceeded the Communication Data Law,” Ynet, Aug. 13, 2009. See the minutes of the Aug.13, 2008 session of the Constitution, Law and Justice Committee. See also Shachar Ilan, “The Police Is Demanding Excessive Information about You from Mobile Phone Companies,” Ha'aretz, Aug. 13, 2009. The police as well as other branches of the government have an impressive record when it comes to the abuse of sensitive information and surveillance authorizations and authority. See Boaz Okon, “The Temple of Justice Is Decked with a Guillotine,” originally published in The Advocate, (February 2009), p. 13 and online on the NFC website. See Boaz Sanjero, “Leave the Fingers Alone,” NFC, p. 85. For a summary, see “The Struggle against the ‘Big Brother’ Bill HQ: No to the Biometric Database,” ACRI. Yoram HaCohen, Head of the Technology, Law, and Information Authority, a department of the Ministry of Justice: “We are dealing with a database which has a huge abuse potential. That is why any attempt to balance between the legitimate requirements and the very great danger inherent to any abuse of such a database is cause for true dilemma […] we should try and avoid the creation of the biometric database.” Avi Belzovski, “The head of ILTA: ‘It's Better to Try to Avoid the Biometric Database?’” People and Computers, Sept. 30, 2009.
It is the way of the world that, except for exceptional cases of voyeurism, privacy is breached so as to damage legitimate interests and other human rights. Zimmerman explains that the damage from the “surveillance society,” which is slowly closing in on us, not only relates to exposing the intimate and personal, but also relates to the change in the power relations between the state and its citizenry, and to the problems of the social charter that underlie these relations.Diane Leenheer Zimmerman, "Exactly Why is the Crowd Naked? Are We Strippers or Were We Robbed?” Criminal Justice Ethics 24 (2005), pp. 47-52.
However, the tremendous power of the “surveillance society” is not necessarily based on actual surveillance, but also on the fact that the individual knows that the state controls his personal information and can monitor him anytime it wants to. Recognition of this fact is enough to cause citizens to alter their behavior and live in constant fear.Daniel J. Solove, The Digital Person: Technology and Privacy in The Information Age (New York: New York University Press, 2004) pp. 29-31. See Bruce Schneier, "The Eternal Value of Privacy,” May 18, 2006. See also Michael Birnhack, “Surveillance at the Workplace – Taylor, Bentham and the Right to Privacy,” Work, Society and Law, 12 (2008), 6. It is no wonder that the right to privacy is described as one “of the most important of human rights,”Supreme Court of Justice, Docket 650/04 Jane Doe vs. The Greater Rabbinical Court (2006). because it is a necessary condition for personal autonomy and dignity. A person who lacks privacy loses his freedom.See Michael Birnhack, “Control and Consent: The Theoretical Basis for the Right to Privacy,” Law and Governance, 11(44) (2007).
It is difficult, therefore, to understand how supporters of the biometric database could even ask, “Who’s afraid of fingerprints… in a society where most of one’s personal information is already accessible,”“It is difficult to fathom why it is the fingerprint, though unique and thus enabling a positive identification, engenders such strong feelings in a society in which most personal information is easily accessible…” says Orit Shochat in her editorial, "Who is Afraid of the Fingerprint” (Hebrew), Ha'aretz, Aug. 7, 2009. See also Or Hirshegaua, “Meir Sheetrit: ‘There Are in Israel Biometric Databases Encompassing Millions of People. Where Have You Been?’”, The Marker, Aug. 12, 2009. or embrace the stupid notion according to which the right to privacy is the refuge of scoundrels and those “who have something to hide.” The serious fear of the biometric database is not about “fingerprints,” but rather about the all-knowing government: “information is power,” and absolute power corrupts absolutely. In a democracy, power must be limited and decentralized, and this is true with respect to the information concerning its citizens that the state has at its disposal. Constant surveillance is the unequivocal trademark of a police state and, therefore, we must protect our privacy even when we have nothing to hide.Bruce Schneier, “The Eternal Value of Privacy,” May 18, 2006. See also Daniel J. Solove, “‘I've Got Nothing to Hide’ and Other Misunderstandings of Privacy,” San Diego Law Review, 44 (2007), p. 745; John W. Dean, “Why, Even If You Have Nothing to Hide, Government Surveillance Threatens Your Freedom: The Case against Expanding Foreign Intelligence Surveillance Act Powers,” Oct. 2007; and Avner Pinchuk, “‘I Have Nothing to Hide?’ Think Again” (Hebrew), Ynet, Jan. 6, 2009.
Toward the end of the first volume of Politics, Aristotle wonders what happens when a democratic government deviates from its principles. “Since the state is a partnership, and is a partnership of citizens in a constitution, when the form of government changes, and becomes different, then it may be supposed that the state is no longer the same… It is different when the form of its composition alters.”Aristotle, Politics, p. 126, mark 1276b. In a state that surrounds itself with walls (here Aristotle warns that the state cannot be considered a “single unit” on the basis of the walls of the city, “for you might surround all Peloponnesus with a wall” Ibid, p. 125. ), we should think twice before placing additional walls between the individual and his own body, between citizen and citizen, between citizen and government, and between government and government. Democratic government is based on partnership and not separation. A mechanism that, by its very nature, creates separation of a type that cannot be changed or erased is certainly anti-democratic, even if it temporarily reinforces the state.
Translator's note: The Israeli political system, in general, and its institutions and legal system, in particular, are a product of an abrupt and somewhat fractured history. It would be impossible to classify all of its components in one set category: the concept of the Israeli National Security Agency is distinctly North American, whereas the Justice Department (though this is changing with uncanny speed) adopted the English structure, although property law reflects both German and Ottoman influences. Hence, institutions and legal references have been given their closest equivalent in order to reflect Israel’s unique reality, foregoing systematic translation in the name of accuracy.
Dr. Nitzan Lebovic is a historian and researcher at The Israel Democracy Institute and The Van Leer Institute. He is the incoming Chair for Holocaust and Ethics at Lehigh University in Pennsylvania. In recent years, Nitzan Lebovic has been involved in the history and theory of biopolitics.
Adv. Avner Pinchuk is the Director of Information and Privacy and heads the “Struggle Against the Biometric Database” at the Association for Civil Rights in Israel (ACRI). He writes a blog devoted to the Biometric Database Law: http://acri-antibiometric.blogspot.com.
The authors would like to thank Mr. Amir Sokolowski for his assistance in the translation and editing of this article.