1. Twenty-one days intermediate deadline, January “ultimate” deadline: The law gives the government the power to extend the Shin Bet surveillance program for 21 days at a time, with repeated extensions until January 2021.
On one hand, this is better than how the program started in mid-March with no limit. It is even better than repeated 30 day extensions with no ultimate deadline, which had been discussed as an option.
On the other hand, no one really believes the government or the Knesset about the end date anymore. Based on when the program restarted weeks ago, it means it will run for at least six months. Really the six months can be called eight-and-a-half months since it will have been running since mid-March with only a brief two week break in June.
Programs that run for that long are more likely to become a part of regular life and to even impose all kinds of additional secondary effects on civil liberties than they are “temporary” or “emergency” measures.
A program running this long will also likely have unforeseen impacts on the Shin Bet’s focus on fighting terror – exactly what Shin Bet Director Nadav Argaman wanted to avoid.
2. “Magen 2” – The law insists that the Health Ministry’s voluntary cellphone application Magen 2 be introduced to the public within a week.
This is certainly better than nothing and the seemingly indefinite attempts to put any alternative to the Shin Bet surveillance on ice.
However, especially if the government is ready to have Magen 2 run in parallel to the Shin Bet program, it is unclear why some version of Magen 2 was not rushed out to at least some people already two months ago. No one thinks the Shin Bet surveillance has been free of error. So why couldn’t Magen 2 start earlier in parallel to the Shin Bet?
Unfortunately, the most likely answer is that the government is only allowing Magen 2 out of the box as long as it runs parallel to the Shin bet surveillance, and that it never seriously considered giving the app a chance to replace spy agency surveillance.
This might be based on a belief that the public will not download the app at high enough rates to make it effective in contact tracing. But by releasing the app when the public knows the Shin Bet is tracking them, it pretty much makes failure in getting the public to download a self-fulfilling prophecy.
If the Knesset was taking Magen 2 seriously, it would set a benchmark for how much of the public would need to join in order to halt the Shin Bet surveillance.
Interestingly, late Monday, it was announced that a subcommittee of cabinet ministers led by Intelligence Minister Eli Cohen had set such a benchmark of 1.68 million cellphone downloads.
In theory, this would mean that if around one-third of the country’s cellphone owners download Magen 2, that the Shin Bet program would stop.
But since this is not in the Knesset law, it is unclear if this would be enforceable if Prime Minister Benjamin Netanyahu wanted to keep the surveillance going.
3. Knesset can halt surveillance within five days – The law empowers the Knesset to halt or reduce the length of Shin Bet surveillance within five days of when the government extends the program.
This is much better than nothing and it does give the Knesset a role.
Yet, this was passed in an atmosphere in which the program was already a fact on the ground since the Knesset itself had already voted to let the government seize new emergency powers with the Knesset only getting to perform oversight after the fact.
With the Knesset yielding its oversight so readily a few weeks ago, how much confidence will the public have that the Knesset is actually ready to halt the Shin Bet program against the government’s will in the event of abuse or overreach?
4. Two-hundred new infections per day benchmark – The law says that the Shin Bet program should cease if the number of new infections per day drops below 200.
This sounds very reasonable and like a serious achievement in terms of setting a real benchmark for when to trigger Shin Bet surveillance and when to hold it back.
The problem is that other than a few weeks, there have been more than 200 infections per day for the vast majority of the time since mid-March and it is expected that there will be more than 200 per day for at least a couple more months.
And what if the country cannot consistently keep infection rates under 200 per day until there is a vaccine, estimated for some time in mid-2021.
Does that mean that from March of this year until mid-2021 the Shin Bet program will continue?
If that is the ultimate outcome, then all of the new limitations will be looked back on as window-dressing.
In contrast, if the Knesset surprises and is ready to challenge the government on the Shin Bet program at some point (like the Shin Bet director did), it at least now has legislative tools to do so.