High Court: State Must Justify the Use of “Hawk Eye” Surveillance

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HCJ issues Conditional Order in response to ACRI and Privacy Israel Petition: onus on State to justify use of “Hawk Eye” tracking system

On January 11, 2021, the High Court of Justice issued a conditional order instructing the Israel Police to justify why it will not desist using the “Hawk Eye” tracking system until its use is regulated by appropriate legislation. Privacy Israel and ACRI stated: “This morning's decision is of dramatic importance not only on the issue of ‘Hawk Eye,’ but regarding a range of surveillance technologies that the government puts to use without receiving legislative approval that infringe on the right to privacy of all civilians."

About a year ago, Privacy Israel and ACRI petitioned against the Police for using this surveillance system, which captures and identifies vehicles and drivers passing by cameras scattered throughout the country by License Plates Recognition (LPR). The petition argues that this surveillance system is extreme and allows for sensitive, private information to be accessible at the click of a button - such as the location of civilians traveling throughout the country in real time and in recordings to recover a person’s whereabouts as well as meetings with others. The system has been operating by the police for over 8 years without legislation that would authorize their power to infringe on the basic right to privacy, freedom of movement, and other basic rights. At the hearing on the petition last May, the High Court ordered the Police to promote legislation to regulate the tool and submit updates on the progress of legislative proceedings.

Consequently, the Police issued a law memo, but were not satisfied with the regulation of “Hawk Eye” and added to the legislative initiative provisions regarding future use of complex and invasive systems, including face recognition technology.

In a response submitted to the court about a month ago, the petitioners argued that the attempt to cram sweeping authorization for the use of a variety of video surveillance technologies into the legislation complicates and burdens the legislative process and was likely to delay it for an extended period of time, despite the urgent need to anchor the use of “Hawk Eye” in legislation as it has been active for years in violation of the law. It was further argued that the conduct of the Police is based on an erroneous assumption that the use of the tool at this time is legal.

This decision is of particular significance in all criminal trials taking place currently in which evidence from the “Hawk Eye” system is presented. Police claimed that this evidence is admissible because the High Court did not issue a conditional order in response to the petition, thus “authorizing the Police to continue using the system as it does currently.” In light of this, ACRI Attorneys Anne Suciu and Avner Pinchuk requested of the Court to advance the hearing on the petition and issue a conditional order.