Big Brother (Extract)

By OMER TENE
Extract from an article in Issue 20, January 21, 2008 of The Jerusalem Report. For full story please subscribe to The Jerusalem Report click here to subscribe. The recent amendment by the Knesset of the criminal procedure statute, better known as the "Communications Data Act," raised an outcry from privacy advocates and criticism from prominent journalists and academics. The act, dubbed by some the "Big Brother Law," touches the delicate balance between national security and law enforcement concerns, on the one hand, and the basic right to privacy, on the other. Striking the correct balance is a difficult task not only for Israeli legislators but also for those in the U.S. and Europe, particularly after the 9/11 bombings and the subsequent terrorist attacks in London and Madrid. The new act authorizes law enforcement officials to obtain by judicial order details of telephone calls made, Internet sites browsed and the geographic location of mobile phone users. In urgent cases, where necessary to save lives or prevent the commission of a crime, a police officer is authorized to obtain such "communications traffic data" even without a judicial order. Moreover, the act establishes a national database of telephone numbers, including unlisted ones, mobile phone subscribers, serial numbers of mobile phones, and maps of cellular antenna locations. This comprehensive database, managed by the police, is the first of its kind in the world. The Knesset did, however, omit from the act a police request for a directory of all Israeli citizens' e-mail addresses. True, law enforcement clearly needs access to communications data. Professor Menahem Ben-Sasson, who chairs the Knesset Constitution, Law and Justice Committee, which shaped the act, characterizes the plight of law enforcement as "the need to obtain 21st century devices against criminals who are already using 22nd century tools." Terrorists, pedophiles and organized crime networks use communications systems to plan, coordinate and commit serious felonies. Enabling the police to infiltrate such networks, track criminals and bring them to justice clearly serves the common good. On the other hand, the right to privacy has rightfully been elevated in Israel to constitutional status. Citizens must not be subject to unreasonable searches or treated as suspects when there is no evidence of wrongdoing. And laws which infringe on constitutional rights, such as privacy, must pass a proportionality test or face the risk of being struck down as unconstitutional by the Supreme Court. The new act is problematic in many ways. To begin with, its definition of "communications traffic data" is too loose. In the past, traffic data - the mere recording that a communication has taken place - was distinguished from the content of the communication, which was accorded stronger privacy protection under wiretapping laws. It is intuitively clear that a list of numbers dialed is less sensitive, less privacy-intrusive than the contents of telephone conversations. However, over the years, with the advent of new communication technologies, the distinction between traffic and content began to collapse. For example, information about Internet pages visited is characterized by the act as "traffic," but is highly sensitive from a privacy perspective and more akin to communication content. The ability of law enforcement to geographically track citizens through the use of mobile phones is also more intrusive than merely monitoring telephone calls made. Given the technologies in use today, communications traffic data merit stronger privacy protections than those offered by the act. Dr. Omer Tene, a lecturer at the Rishon Lezion College of Management's School of Law, is a member of Ministry of Justice and Israel Bar Association committees on privacy and data protection. Extract from an article in Issue 20, January 21, 2008 of The Jerusalem Report. For full story please subscribe to The Jerusalem Report click here to subscribe.