September 11 came and threw off the balance between national security and human rights.
Over some years, Israel and the US rebuilt a balance that took into account new threats from terrorists, but returned some limits and oversight on agencies like the Shin Bet (Israel Security Agency) to prevent violations of citizens’ constitutional liberties, such as privacy.
Then came the coronavirus.
Did Prime Minister Benjamin Netanyahu’s emergency coronavirus order – with no Knesset or court endorsement and without even a permanent functioning government – bring Big Brother back into the picture with fiery vengeance?
If it did, should the average citizen be supportive because of the unprecedented nature of the coronavirus challenge and trust in apolitical Health Ministry officials or should they be in fear that Netanyahu may be using the Shin Bet to infringe on their privacy at all new depths?
The truth is it is too early to say.
Neither Netanyahu nor Attorney-General Avichai Mandelblit, who apparently signed off on the measures in broad terms, described what the Shin Bet would do to surveil those citizens with coronavirus or what protections are in place for privacy and other civil liberties.
In fact, late Sunday night, a group of privacy law experts published a list of around a dozen unanswered questions that Netanyahu and the authorities involved must answer to use such extreme measures on the general public.
On the other hand, a senior Justice Ministry official said Sunday night that use of the counter-terrorism tools against Israeli civilians would need to be approved first by the Knesset’s Foreign Affairs and Defense Committee’s Subcommittee on Intelligence, which is led by Blue and White’s Gabi Ashkenazi.
While this does seem to create some level of legislative oversight, legal experts were still critical of the decision to use these invasive capabilities against Israeli citizens.
From following the Shin Bet’s capabilities regarding tracking Palestinian terrorists, one can imagine tracking sick people’s cellphones to follow their location, tracking their phone calls and texts to see what they are telling others and even using drones to surveil and photograph them.
Without knowing which of these or other techniques they will use, when they will use them, who has to sign off and under what circumstances, the ability to evaluate the new moves is limited.
This very fact of such a dramatic move while providing so little transparency is what has already bothered several political parties, NGOs and legal experts.
Expressing what many critics have said, former Hebrew University Law School dean and Israel Democracy Institute fellow Yuval Shany told The Jerusalem Post on Sunday that the move sets a “dangerous precedent” to equate ordinary sick citizens with measures normally used to follow terrorists.
He described a three-law legal framework in which a law related to the Shin Bet, communications and eavesdropping each coexist with a “super sensitive” balance between security and privacy.
“Here is a move which leaves the framework, uses authorities which were security-related and had very strong limitations, and brings them into civilian life. Until now, there were brakes and such moves were very stoppable. The police needed to go to court to use eavesdropping against criminal syndicates. They use that a lot, but they had to go to court,” he said.
Now, he said the coronavirus emergency measures would allow “following a citizen without a connection to national security” as it has been known and “without any kind of regular judicial oversight.”
He questioned whether the “danger” of a sick person leaving their house – and noted that practically all sick people were self-quarantining as required – was not sufficient to allow such a dramatic invasion of civil liberties “with no parliamentary or court oversight.”
Moreover, he added that the few cases where people violated quarantine, they were not actually sick, but only in quarantine as a precaution, and even those violations were rare.
Next, he said there are less invasive alternatives to enforce the quarantine of sick people, such as “the Taiwan model. There the government issued special phones and you would need to update” regularly where you were.
Shany said this was better because even if the Shin Bet might monitor something related to such a phone, it was “not your personal phone.”
In addition, he said that using the police to stop people or neighbors to report on quarantine violations were viable alternatives at this stage.
Shany also said that the timing of the order, simultaneous with an order by acting Justice Minister Amir Ohana to suspend many courts proceedings, including Netanyahu’s trial, “looks like a rogue opportunistic action and is worrying.”
“Why did it specifically need to happen today as opposed to in another week with a parliament to pass a law?” he asked rhetorically.
Next, Shany was pressed that Mandelblit and the High Court of Justice had not yet intervened to block either the Shin Bet surveillance order or the delay of Netanyahu’s trial, which seemed to signal their consent.
Responding he said that “the attorney-general is under pressure” and that it was problematic “that he did not issue an explanatory decision giving justifications” for such an extreme move.
Shany emphasized that the Shin Bet “did not ask for these tools…it has a duty to defend the nation’s security” from terror, and that to do this “it has very big capabilities…which can deeply harm privacy.”
Echoing Shany, Tehilla Shwartz Altshuler, also a fellow at IDI said, “We are in the midst of an emergency, but this doesn’t mean that turning Israel into a surveillance state is justified. It is essential to collect data and publish warnings – but it is also essential to respect Israelis’ right to privacy; the government must restrict itself to the use of proportionate tools only.
“It is easy to infringe on rights – reinstating them - will be much more difficult,” she added.
Further, she said, “Mass surveillance of the entire population must be prohibited. Surveillance is only permissible: in order to validate…a verified patient’s information, in cases in which there are grounds to believe that the patient did not tell the truth…to collect information in order to warn people who have come in contact with a verified patient; and to verify that quarantine orders are being upheld.”
Both experts warned that there must be clear limits on what kind of information can be collected about sick people at any stage, how many officials can access it and how long that information can be held by the state, with Shwartz Altshuler suggesting a 21-day maximum deadline.
It may be days, weeks or much longer before the picture comes into focus, but at this stage, there may be less deference by civil liberties experts than during the initial September 11 period, which means the legal conflagration over the issue has already begun.