Following ACRI’s petition, submitted along with Privacy Israel, against the unauthorized operation of the “Hawk-Eye” surveillance system, the High Court of Justice ordered the State to regulate the issue through legislation. A legal memorandum was indeed published, yet rather than establish provisions to ensure the proportionate use of this system, the memorandum instead seeks to authorize a variety of surveillance systems, both existing and developing, and to grant the police permission to use them nearly indiscriminately. The legal memorandum generates a genuine risk of turning Israeli society into a surveillance society.
In our comments to the legal memorandum submitted by ACRI Attorneys Avner Pinchuk and Anne Suciu, we expressed our strong opposition to the proposed arrangement for a number of fundamental reasons, including:
A. Significant regulations have been left out of the law: The Hawk-Eye system marks a substantial leap forward in the police's surveillance capabilities, as well as an unprecedented violation of human rights and a slippery slope that threatens fundamental freedoms and democracy. This violation of fundamental rights is severe and significantly impacts the scope of the initial regulations that should be included in legislation, but instead the memorandum puts forth vague and flexible provisions that leave significant aspects for future regulation. Furthermore, postponing the completion of regulations to an unknown date is especially unacceptable in light of the fact that the Hawk-Eye system has been operating covertly for years.
B. Establishment of a comprehensive arrangement for a variety of surveillance systems: The memorandum establishes a uniform arrangement for the use of the Hawk-Eye and facial recognition surveillance systems, entrusting the police with a blank check that enables them to use other future or existing surveillance technologies. A uniform arrangement for various means of surveillance expresses a significant disregard for the distinctions between surveillance technologies and further threatens basic rights and the democratic foundations of the state.
C. The covert addition of future surveillance systems: In accordance with the memorandum, the Minister of Public Security may amend the law in the future, thus "authorizing" the police to use additional surveillance systems in the future. The amendment will remain confidential and won’t be brought to the attention of the public nor to the Knesset. Covert legislation that authorizes the police’s use of invasive surveillance tools is unacceptable in a democratic society, and the very attempt to anchor it in legislation is appalling and unacceptable.
D. Police use of face recognition surveillance: The use of facial recognition technology by police in public space is highly controversial, both nationally and globally, and should not be permitted. Beyond the substantive aspects, "trapping" a variety of controversial surveillance technologies in a legal memorandum is likely to prolong both the legislative process and the grave harm caused by the ongoing operation of "Hawk-Eye," outside of legal bounds and oversight.
E. Database documenting location and movement of citizens: The arrangement proposed in the memorandum covers up and enables the establishment of a large database that will regularly document the whereabouts of hundreds of thousands of citizens, and later millions of people, on an ongoing basis. The transition from using real-time technological surveillance to identify and apprehend suspects, to generating surveillance tools – second only to the “tools” of the General Security Service, critically violates fundamental rights and should not be permitted in a democratic society.
F. Lack of judicial oversight, accountability, and transparency: According to the memorandum, "Hawk-Eye" will be used in accordance with internal procedures, internal approvals, and internal oversight by the police. This is unacceptable. It is necessary to establish external mechanisms of judicial oversight, accountability, transparency, and parliamentary and public oversight. These are necessary in the face of significant violations of fundamental rights and the apocalyptic potential of surveillance technologies.