Israel appears to have had relative success in curtailing the spread of the novel coronavirus pandemic. With a population of over 9 million, as of May 7, 2020, since the outbreak of COVID-19 in Israel: 432,453 tests have been conducted, 16,346 patients have been diagnosed with COVID-19, 239 have died, and 10,737 have recovered. On May 7, 2020, 32 new patients were diagnosed with COVID-19.
To fight the pandemic, the Israeli government has imposed a variety of measures, including social distancing, home isolation and reporting requirements for passengers arriving in Israel from other countries, and use of cameras in COVID-19 hospital units. The government has started lifting a number of restrictions “in order to gradually restore the Israeli economy to a cautious routine in the shadow of the Corona.”
One particular measure utilized by the government has been controversial. The government considers tracing patients, and those who were in contact with them, as crucial to stop the spread. To do that, on March 17, 2020, the government published the Emergency Regulations (Authorization of the Israel Security Agency [ISA] to Assist the National Effort to Reduce the Spread of the Novel Coronavirus), 5780-2020. The emergency regulations were in effect for a period of 14 days, and then replaced by government decision No. 4916, issued on March 24, 2020, and subsequently replaced by government decision No. 4950, issued on March 31, 2020, extending surveillance authorities to April 30, 2020. The government expressed interest in further extending the ISA authorization, especially when social distancing and other restrictions are being lifted.
On April 16, 2020, Israel’s Supreme Court held a hearing on the validity of the ISA authority to conduct surveillance in the context of the pandemic. The hearing was broadcasted live on the Israeli Judicial Authority website. The Court issued its decision on April 26, 2000, unanimously holding that the authorization could not be based on a government decision. Instead, the government was required to anchor the authorization in legislation. Additionally, the Court, by two-to-one justices, determined that there must be a special procedure for the transfer by the Ministry of Health to the ISA of identifying information on journalists who contracted COVID-19. (HC 2109/20 Ben Meir v. Prime Minister.)
The Legal Basis and the Scope of ISA Authorization under Government Decision 4950
The decision was issued pursuant to section 7(b)(6) of the ISA Law, 5762-2002. This provision authorized the ISA to engage in activities other than those enumerated by the Law, that were determined by the government, with the approval of the Knesset (Israel’s parliament) Committee on the ISA, as necessary, to protect and promote essential national security interests. (ISA Law, 5762-2002, Sefer HaHukim (Book of Laws, official gazette) 5762 No. 1832 p. 179, as amended).
The decision authorized the ISA:
(a). … to receive, collect and process technological information to assist the Ministry of Health in conducting an examination regarding the period of 14 days prior to a patient’s diagnosis, for identifying location data and movement paths of a patient and for identification of persons who came into contact with him, to identify the source of the patient’s virus infection and who might be infected by him…
(b). [and to] … transmit necessary information details to the Ministry of Health …so that the Ministry of Health can give guidance to patients, people who have come into close contact with them and the general public. (Decision 4950 § 2).
The decision defines technological information as:
Telecommunication data of … identification, location and communication, excluding content of conversations within the meaning of the wiretapping law, 5739-1979, as approved by the Knesset Service [ISA] Committee.
It defines necessary information details as:
(1) For a patient: Location data and traffic routes in the period of 14 days before the day of diagnosis.
(2) For persons who have come into contact with a patient: a full name, identity card number, telephone number, date of birth, date, time and location of last exposure to the patient, … to the extent possible and necessary (Decision 4950 § 3).
The petitioners argued that the government did not have the power under the ISA Law to grant the ISA authorization in areas involving public health. As a body responsible for preventing security threats against the state, they argued, the ISA might only act in areas involving national defense. In the petitioners’ opinion, section 7(b)(6) of the ISA law should be interpreted narrowly to apply only to national security threats. (HC 2109/20, main opinion by Court President Justice Hayut, para. 9.)
The petitioners further alleged that the authorization for a massive surveillance of citizens by a state security agency violated the constitutional rights to privacy and dignity, and harmed the democratic system of checks and balances. According to one of the petitioners, the Organization of Journalists, surveillance of journalists under the ISA authorization would have a chilling effect on journalistic sources. (Id. para. 10-11.)
Rejecting the petitioners’ claims, the respondents argued that the ISA possessed the most effective means to engage in COVID-19 tracing for the purpose of stopping the spread of the virus. The respondents did not dispute that ISA surveillance might result in infringement of the right to privacy. The harm posed by not utilizing the ISA surveillance capabilities to the right to life, to public health, and to the Israeli economy, they argued, exceeded that inflicted on the right to privacy and to journalistic privilege. (Id. para. 12-13.)
Supreme Court Decision on the Legality of the ISA Surveillance Authorization during the Pandemic
1. Criterion for ISA Authorization
An examination of the legislative history of section 7(b)(6) of the ISA law, according to Justice Hayut, reflected its drafters’ intention to limit ISA activities to areas that directly involved national security. These included not only military or terrorism threats, but also those involving industrial espionage, international crime, as well as serious international offenses and matters in which a body such as ISA might have an advantage as compared with regular police. (Id. para. 19-20.)
Hayut held that the criterion for determining if there existed a national security threat for purpose of ISA authorization under section 7(b)(6) was whether there existed a “grave and immediate danger to citizens and residents of the state or to its norms of government.” This interpretation of the provision, she noted, was supported by its legislative history, as well as by “the emphasis – in Israel and worldwide on - prevention of uncontrolled expansion of the powers of preventive security bodies.” (Id. para. 20-22.)
According to Hayut, a grant of authorization did not require proof of existential threat as a condition for government authorization. There was no intention, however, to extend the authorization to “routine threats to public order with which the police and civil enforcement agencies are confronted daily.” Referring to the immediate nature of the threat, Hayut held that authorization could be granted only for a time when there was no practical possibility of developing alternative suitable means to address the danger. Therefore, the expansion of the ISA authorities in areas that were beyond the strict meaning of security matters could not be for an unlimited period. Rather, such expansion would be authorized only under conditions of immediacy and unavailability of alternative means for countering the grave danger. (Id. para. 23.)
2. Qualification of COVID-19 Pandemic as a Grave and Immediate Threat to National Security
Hayut recognized that at the initial issuance of ISA authorization, the outset of the pandemic outbreak constituted a grave and immediate threat to national security in its qualified meaning beyond the narrow interpretation of security threats. In her opinion, however, further extension of the authorization could not be based on additional government decisions, but would require legislation.
An extension of an arrangement which is of temporary nature and limited in duration, Hayut opined, required consideration of the legal foundation upon which it relies. In this case, the weight that should be given to the urgency of regulating the issue in the framework of a government decision diminishes over time. This is especially relevant because during the time that had passed since the initial issue of the authorization, the Knesset had been able to conduct “a meaningful hearing for anchoring the ISA authorization in an organized manner in primary legislation.” (Id. para. 29-30.)
In a representative democracy in which the sovereign is the people, she held, major substantive decisions that impact citizens’ lives must be adopted by the body that was elected by the people for that purpose. The need for a legislative process, Hayut noted, was also supported by the temporary nature of the interim government that adopted the decision, and the inability of “a few members of the Knesset ISA committee to offer an alternative to 120 elected members.” (Id. para. 31-32.)
Under these circumstances, Hayut held, to the extent that the ISA surveillance would be necessary to stop the pandemic beyond April 30, 2020, the government must act to anchor the basis for such involvement in primary legislation to enable the participation of Knesset members of all parties in this important issue. It would be appropriate for such legislation, she noted, to be temporary. Considering the need to address the pandemic, the Knesset could expedite, but not hasten, the legislative process, as long as it allowed for receipt of public comments and held appropriate hearings.
Hayut ordered that the ISA authorization could be extended beyond April 30, 2020, for an additional few weeks, to enable completion of the legislative process. Such extension would depend on putting into motion legislative procedures to enact relevant legislation by that day. (Id. para. 33-34.)
3. Special Arrangements for Journalists
Hayut held that the Ministry of Health should be provided with a list of holders of press passes. Passes are issued to journalists by the Government Press Office. A journalist who had been identified as infected with COVID-19 should be asked to consent to the transfer of his/her relevant information to the ISA. A journalist who refuses may, within 24 hours following diagnosis, request the issue of a judicial injunction against the transfer.
The journalist will, however, be required to undergo epidemiologist testing and to sign a declaration that he/she would personally inform any sources with whom the journalist came into contact 14 days prior to diagnosis. (Id. para. 44-45.)
On May 5, 2020, the Knesset Intelligence Subcommittee approved a three-week extension for the government to use the ISA surveillance assistance for fighting the COVID-19 pandemic. The extension was granted to enable advancement of the legislative process. We will be following legal developments and report on them as warranted either here on the blog or in the Global Legal Monitor.