ACRI filed a petition to the Israeli Supreme Court along with Adalah – The Legal Center for Arab Minority Rights in Israel, Physicians for Human Rights – Israel, and Privacy Israel today, August 16, 2020, calling to repeal the law authorizing the Shin Bet to use mass surveillance capabilities to monitor COVID-19 patients and those who have come in contact with them.
In previous petitions filed by ACRI and Adalah on the subject, the Supreme Court ruled that the government must cease using the Shin Bet services unless it were to promote legislation that would authorize its use. The Supreme Court also ruled that the proportionality of using mass surveillance tools as such should be examined, and that civil alternatives are imperative.
Following the ruling, the government did not move further to promote legislation, partly due to pressure from the head of the Shin Bet himself, among other things. With the increase of COVID-19 infections, however, the government eventually asked the Knesset to put forth legislation and a temporary order was quickly enacted on July 1, 2020, authorizing the use of the Shin Bet to track civilians for six months.
In the petition submitted today, ACRI attorneys Gil Gan-Mor and Dan Yakir stress that the temporary order is unconstitutional, as it authorizes the Shin Bet to use extreme mass surveillance tools whose sole original purpose is for national security – and not for civilian purposes – and as such these tools severely and persistently violate the right to privacy and freedom. The petitioning organizations claim that the use of this tool is extreme and disproportionate and that the harm outweighs the benefit, especially since there are civilian alternatives – first and foremost, improving the epidemiological investigations, which have not improved either in number of investigators nor in the tools given to them.
The petitioners argue that Israeli state authorities are exaggerating the significance of Shin Bet tracking in the fight against COVID-19. Epidemiological investigations are but one of the strategies for dealing with the epidemic, and the available improvements to this system are not being implemented.
Moreover, there are other technological means more proportionate and more accurate than those of the Shin Bet, such as the Israeli Health Ministry’s “ Shield 2” smartphone app. The Shin Bet’s tracking means are not suitable for close-contact detection, and sends demands to self-quarantine to many citizens based on incorrect information and without epidemiological justification. Since the Shin Bet’s means were reauthorized for this use, approximately 300,000 people have been instructed to self-quarantine, and while over 60 percent of appeals of quarantine orders are eventually accepted, the damage – time and money lost, for example – is irreversible and wide-reaching.
The petitioner further maintain that carrying out the surveillance requires the Shin Bet to rely on a huge database of metadata created by virtue of Section 11 of the General Security Services (GSS) Law, and that it is questionable whether the creation of such a database, which is regularly storing highly-sensitive communications data of innocent citizens, is legal even when used for national security purposes. This database is too broad, secretive, unsupervised, and non-transparent, especially in terms of the task at hand. Therefore, the petitioning organizations hope to determine that Section 11 of the GSS Law cannot be relied upon for the purpose of the COVID-19 Surveillance Law.
In the petition, the organizations emphasize that the struggle against COVID-19 requires a prolonged and complex balance between maintaining a routine normalcy and protecting the public health. It should not, however, be seen as an issue of national security that justifies the suspension of human rights and the use of the Shin Bet. The crisis must be managed while protecting the constitutional rights of civilians and using civilian means.
Atty. Gil Gan-Mor of ACRI: COVID-19 is a complex and frustrating civil crisis that requires a long-term, vital response that preserves civil rights and democratic principles. The Shin Bet’s authority to carry out surveillance is an extreme and disproportionate step – one that has not been taken in any other democratic nation facing COVID-19. Anyone who attempts to instill in the public that the solution is either the Shin Bet or lockdown is misleading the nation and playing on our fears. There are voluntary civil alternatives that both preserve the health of civilians as well as their right to privacy, and are even more accurate in terms of locating close contact. The normalization of surveilling civilians is a slippery slope, and for this reason Chief Justice Hayut stated in our previous ruling when accepting our position that this is ‘a move that may deprive any supporter of democracy of sleep.’”
HCJ 5746/20
For more information (Hebrew)
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