Appeal Against Police Use of NSO Surveillance Spyware
© Tero Vesalainen | Dreamstime.com
18 January 2022
Mr. Omer Bar-Lev Police Commissioner Yaakov Shabtai Dr. Avichai Mandelblit
Minister of Public Security Commissioner of the Israel Police Attorney General of Israel
Re: Police Use of NSO Surveillance Software
We are contacting you to demand that the police immediately cease to use NSO’s surveillance software against civilians, without any legal basis and in gross violation of the basic rights and restrictions legally put forth regarding such actions – whether use was validated through a court order or lack thereof. Such conduct characterizes dark dictatorial regimes and requires investigation by an independent body.
An article published today (Tomer Ganon, “Israel Police Uses NSO’s Pegasus to Spy on Citizens” Calcalist, January 18, 2022) reported that the Israel Police have been using NSO’s Pegasus spyware software against civilians for seven years to gather evidence, investigate suspicions, and even track down civilians who are not suspected of any crime. According to the investigation, the software was used even in cases of suspected fraud and corruption offenses, against demonstrators and social activists, as well as for intelligence gathering purposes.
Not only do the police deny their very use of this measure in their response to the article, but they also claim that it was conducted with the Attorney General’s approval and oversight.
NSO’s Pegasus spyware is malicious software that takes advantage of security vulnerabilities in mobile phones, to take over someone’s phone and control it completely remotely, without their knowledge and consent. The software enables copying of all the information available on the phone, listening to calls, and even sending messages remotely from the device.
Use of the software for investigative purposes constitutes a blatant legal violation, and a grave violation of the basic rights to privacy, due process, dignity, and freedom of protest. Just one week ago, the Supreme Court issued a ruling through an expanded panel on the question of cell phone hacking, as part of an investigation into the Orich case. The court clearly declared that despite the inherent infringement of detainees’ rights throughout the stage of investigation, “this does not imply that the aim authorizes all means. Investigative authorities’ scope of action is always subject to limitations and restrictions intended to ensure fair and proportionate justice regarding the violation of detainees’ rights (including suspects and witnesses) and those of third parties…” (further criminal hearing 1062/21 Orich v. State of Israel, paragraph 27 of President Hayut’s ruling (January 11, 2022)).
Such police activity is contrary to the principles of legality. There is no legal source that explicitly and clearly authorizes the police to use the aforementioned spyware even upon assuming that the police have issued judicial orders for all the cases in which such software was used. There can be no doubt that the extensive collection of information through use of the aforementioned type of spyware, not only requires legal authorization, but also specific and explicit validation through a Basic Law.
Hacking a mobile phone using Pegasus software, enables access to personal and sensitive information from the past, in real time, and in the future: geo-positioning data; location and traffic data; content data and wiretapping; along with ongoing mobile searches – all of which are explicitly restricted through special legislation and require a court order, such that hacking and remote control of a telephone without explicit authorization from the Knesset, wave a black flag of illegality all the more.
It will be further noted that even regarding the “Hawk Eye” system, which tracks the movement of vehicles without explicit legal authorization, the High Court of Justice only recently issued a conditional order instructing the police to explain why use of “Hawk Eye” will not cease in the absence of legal authorization (HCJ 641/21 Association for Civil Rights in Israel v. Israel Police (January 11, 2021)).
Not only does the use of NSO surveillance software not stand the test of constitutionality, but it is also disproportionate. Wiretapping and hacking computerized materials are the most extreme means of surveillance and should solely be used in exceptional circumstances. The violation of privacy via Pegasus software outweighs even the harm caused by wiretapping, accessing communication data, and searching computerized materials all together. Pegasus enables covert tracking of the contents of the device owner’s calls in the past and in the future, along with irrelevant matters, such as access to information stored in the “cloud.” It enables the hacking of personal photos stored in the device, and correspondences conducted with respective lawyers or doctors. Additionally, the software allows for full control of the contents of the device, activation of the microphone so as to listen through it, along with sending messages or deleting messages. It thus enables incriminating evidence to be planted or exculpatory evidence to be deleted. In doing so, the software taints the criminal investigation and generates inherent doubt regarding the evidence.
We will further note that just two months ago, the US Treasury Department declared the NSO a body that works against the interests of the US administration, due to the use of its software to spy on regime opponents and human rights activists. It is outrageous to discover that while NSO spyware is perceived as an unacceptable means that threatens democracy throughout the democratic world, the Israel Police have adopted this invasive tool and are using it as a routine part of its activities, even doing so covertly without any transparency or possibility for public debate.
Last, the investigation reveals that evidence used for the prosecution was gathered by hacking phones through use of the Pegasus software, or that the evidence was later covered up through other searches. The evidence in question was collected illegally, and anyone whose phone was unknowingly hacked must be notified immediately and action must be taken to drop the charges or conduct a retrial.
We seek an urgent reply and clarifications. We will consider further legal steps accordingly.
Attorney Anne SucioAttorney Avner PinchukAttorney Gil Gan-Mor
Attorney Amit Marari, Deputy Attorney General (for criminal affairs)
Brigadier General Attorney General Elad Kahana, Legal Advisor, Israel Police