We Won: HCJ Sides with ACRI Petition Against Shin Bet Tracking Civilians
The measures first taken to give the Shin Bet authority to technologically track those known to be infected with COVID-19, as well as those suspected to have the virus and those who have been in their "proximity," were implemented without parliamentary oversight as emergency regulations.
The health of the public is of utmost importance, but these measures, born out of draconian emergency regulations, are bringing us to a slippery slope when it comes to the invasion of privacy and democracy.
The way in which these measures were first implemented is anti-democratic in every sense - the executive branch simply bypassed the legislature, blurring the separation of powers. Within 24 hours, ACRI attorneys Dan Yakir and Gil Gan Mor wrote and submitted a petition to the High Court of Justice, and the first hearing took place the following day.
After multiple hearings, including the first live-streamed High Court hearing in Israel's history, the Court ruled in favor of ACRI's petition; Without the government passing special legislation, the Shin Bet does not have the authority to track civilians in its effort to curb the crisis.
Below is a timeline regarding the petition.
14 Mar. 2020: In response to the announcement by the Prime Minister of the plan to use technological means to track COVID-19 patients through their cell phones, ACRI issued the following press release: “To the best of our knowledge, patients have been cooperating with the authorities to reveal the places they visited. We have not heard of a phenomenon whereby people are lying or concealing details. Even if we assume that here and there someone may prefer to “forget” a meeting, the marginal benefit that will come from the location data cannot justify the grave violation of the right to privacy. The danger with COVID-19 is not only the virus itself, but concern that during the efforts to overcome this threat, we will lose our basic values as a free and democratic society.” 15 Mar. 2020: We joined a group of experts on the issue of privacy who contacted the Prime Minister, Health Minister, Attorney General, and the head of the Privacy Protection Authority and demanded that the government act transparently and publish full information about the plan to use technological means as part of the struggle against the spread of COVID-19. Among other aspects, we asked the authorities to clarify what means will be used, under what authority, and by what body. We emphasized that in a democratic society, limits apply to the use of draconian measures even in a state of emergency – indeed, precisely in such conditions these limits are particularly important. 16 Mar. 2020: About 90 minutes before the new Knesset was sworn in, the Subcommittee for the Secret Services held a discussion on the powers of the Israel Security Agency (ISA, “Shabak”) and the possibility that the agency will be empowered to undertake technological monitoring of Israeli citizens due to the COVID-19 crisis. We issued a press release urging the committee not to act rashly in granting such extensive powers to the ISA. We noted that the ISA was empowered to attend to state security; extending its authority to an overly civilian matter creates a dangerous precedent and a slippery slope. Such a step should only be taken after extensive discussion, and not in a short process immediately before the Knesset is dissolved. 18 Mar. 2020: Submitted petition to the High Court of Justice against the emergency regulations and the executive branch bypassing the Knesset to authorize the Shin Bet to track civilians during the crisis. 19 Mar. 2020: The High Court of Justice issues an interim order, calling for a Knesset committee to meet and decide on the issue by Tuesday, March 24th, otherwise nullifying the regulations. 23 Mar. 2020: Along with Adalah, we submitted to the HCJ our objection to the State’s request to cancel the HCJ temporary injunction in respect of the emergency regulations authorizing the police to obtain, without a warrant, location data of the infected with the intention of enforcing quarantines. 24 Mar. 2020: A Foreign Affairs and Security Committee was convened to oversee the emergency regulations in Knesset. The government decided to expand the Shin Bet’s authority according to a mechanism set out in the Israeli Security Services Law, and the decision must now be approved by the Intelligence and Secret Services Subcommittee of the Foreign Affairs and Security Committee, set to discuss the issue on Thursday, March 26.
5 Apr. 2020: Submitted a revised petition to the High Court of Justice against the government’s decision to authorize the Shin Bet to track the location and trajectories of Corona patients and anyone who comes in close contact with them during a 14-day period. In addition, ACRI is demanding the repeal of the emergency regulation that allows the police to obtain, without a warrant, the location data from telecommunication companies about civilians with quarantine orders, in order to enforce quarantine. 16 Apr. 2020: In the first-ever live streamed High Court hearing, we argued our petition against the government's decision to give the Shin Bet the authority to track civilians to curb the Corona virus before Chief Justice Hayut, Deputy Chief Justice Melcer, and Justice Sohlberg.
22 Apr. 2020: On April 22nd 2020, the government withdrew the bill that, if passed, would have authorized the Police to use cellular data gleaned from phone companies to enforce quarantine, and the emergency regulation authorizing the Police to do so expired the same day.
26 Apr. 2020: The High Court of Justice ruled that as it stands, the Shin Bet does not have the authority to track civilians in effort to contain the spread of the Coronavirus. In order to do so, the government must pass legislation.
Read the original petition here.
Read the HCJ decision for an interim order here (translated via the Israeli Supreme Court Project at Benjamin N.Cardozo School of Law.)
Read the HCJ decision from the second hearing here (translated via the Israeli Supreme Court Project at Benjamin N.Cardozo School of Law.)
Read the HCJ decision from the final hearing on the petition here (translated via the Israeli Supreme Court Project at Benjamin N. Cardozo School of Law.)
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