The Israeli government cannot keep using its internal security agency Shin Bet’s mobile phone tracking mechanisms to contain the COVID-19 pandemic without a legislation, Israel’s top court ruled on April 26, Israeli dailies Haaretz and Times of Israel reported. In its capacity as the High Court of Justice, the Supreme Court of Israel ruled that the government must “starts the process of legislation” to set terms of such tracking by April 30 and completes it within “several weeks”.

To continue Shin Bet’s involvement in this kind of surveillance beyond April 30, Court President Esther Hayut said, “There is a need to codify its authority to do this [tracking] as part of appropriate primary legislation, such as a temporary order. This is in light of the fact that the method chosen by the government as part of its authorization decision is a means that deals a serious blow to the constitutional right to privacy, and this shouldn’t be taken lightly.”

This ruling comes at a time when different states in India are using mobile phone and location data to track suspected COVID-19 patients in the absence of any oversight mechanisms or legislation to protect people’s privacy. At the time of publication, Israel had 15,443 cases of COVID-19 and 201 deaths, as per the Johns Hopkins tracker.

On March 17, the Israeli government had approved giving emergency powers to Shin Bet to monitor the mobile phones and credit card data of people suspected or confirmed to have COVID-19. Through this, the government will retrace the movements of such people to identify others who need to be quarantined and send them alerts if they need to be quarantined. Alerts are sent to people who were within two metres of a COVID-19 positive person, for 10 minutes or more, in the previous two weeks.

This technology was developed in Israel for counterrorism purposes. This cybermonitoring was to be in effect for 30 days, until April 16. Petitions were filed by rights activist Shahar Bein-Meir, Association for Civil Rights in Israel, Adalah — the Legal Center for Arab Minority Rights, and Union Journalists in Israel in the Israeli Supreme Court against these emergency regulations.

At a hearing on April 16, the Israeli government had reportedly told the Court that it was considering giving the Shin Bet additional assignment to aid in relaxing the movement restrictions. This included using the information collected by Shin Bet to scan areas based on the rate of infection to determine which areas can have their routines restored, the Haaretz reported.

In a meeting between Knesset Foreign Affairs and Defence Committee’s subcommittee on intelligence and secret services held ahead of the hearing on April 26, the head of the ministerial committee on the issue, Yuval Steinitz, said that there was no civilian alternative to Shin Bet surveillance except monitoring by the NSO Group, the Haaretz reported. However, Attorney General Avichai Mendelbit objected to it as it would undermine people’s privacy. More interestingly, the meeting also discussed how use of kosher phones — smartphones developed for ultra-Orthodox Jewish users; these phones have limited to no access to internet and filter out objectionable content by not allowing apps to be downloaded — by a huge number of people is a hindrance to monitoring COVID-19 positive people.

Last week, the Knesset Foreign Affairs and Defence Committee had decided to halt a separate legislation that would have allowed the police to use phone tracking technology to enforce stay-at-home orders for quarantined individuals, the Times of Israel reported.

Protecting journalists’ sources

The Supreme Court also ruled that to protect their sources during the pandemic, journalists have to consent to get their personal details and cell phone data to the Shin Bet, the Times of Israel reported. In case they need to protect their sources, they can file a restraining order within 24 hours of their COVID-19 positive diagnosis to prevent their details from being given to Shin Bet, and must commit to informing on their own any sources they have been in physical contact with in the two weeks prior to a positive diagnosis.