Israel's Big Brother law is definitely one of the most severe in the free world. Can we handle it?
By DAVID SHAMAHeye 88(photo credit: )
Israelis understand the need for security - and the results in the field prove the effectiveness of a good security system. That's why things like the security fence exist, despite the opposition to its presence by many on the Right and the Left. There are lots of reasons to dislike it, but it's shown itself to be effective, most Israelis would agree. The same goes for inconveniences like security checks at the entrance to malls, bus stations and office buildings; they can be annoying and time delaying, but they seem to work.
This logic can extend to other areas of life, but the slippery slope may have a deeper decline than most of us realize. Is there such a thing as too much security? For example, is it okay for the authorities to read our mail? After all, someone could be communicating plans for a terrorist attack. How about e-mail? We've all heard stories about how terrorists communicate with each other electronically. Cellphone conversations? Maybe they need to be monitored, too.
Granting such wide-ranging authority to the authorities seems like an act that would make for an iffy sociopolitical experiment: to determine whether government can have nearly complete, on-demand access to personal communications, while still ensuring personal liberties.
It's an experiment in which we Israelis are the guinea pigs, thanks to Israel's version of the Patriot Act, the Communications Data Law (also known as the "Big Brother" law). The law passed in June, but hasn't really been enforced yet, because specific procedures for collection of some of the data have not yet been authorized.
To those who grew up in Western societies where the right to privacy was considered unassailable, the law's tenets can seem disturbing, to say the least. Under the new law, police have the right to demand from service providers any information they deem necessary on your electronic communications habits and history. This includes a complete history of your Internet surfing, all the e-mail messages you send or get, the address of all your e-mail correspondents (and copies of their messages, too, if necessary), a list of all the phone calls into or out of your cellphone, and the names and phone numbers of all of your cellphone contacts, even if they have blocked their numbers from people they call.
Police can request any of this information on the basis of an investigation they are conducting, based on their own criteria. In other words, they do not have to get a court order or consult with a judge or anyone else. All they have to do is show up with an order signed by an "authorized" police officer and, according to the law, the Internet service provider (ISP) or phone company in question is required to comply.
If the law has not been widely used yet, says Nirit Moskowitz, a spokesperson for the Association for Civil Rights in Israel (ACRI), it's most likely because police have not yet built the databases and information-management units to handle the flood of data.
It's a heavy load of responsibility for anyone to be carrying, ACRI says. And, says Moskowitz, police have already been taken to task by Knesset members for abuse of power on using the law - with the ink barely dry!
At a Knesset committee discussion last August to approve some of the procedural issues surrounding the law, MKs were astounded to learn that police had used the law to demand information from one of the cellphone companies that was not covered by the law; the cellphone company, thinking that police now had the right to ask for the data, willingly surrendered it. The MKs were so taken aback by the development that they canceled the session; last month they canceled a second session that had been scheduled to approve the procedures - meaning that major parts of the law are still in limbo.
ACRI, meanwhile, has been petitioning the High Court, seeking to insert adjustments to the law that would prevent some of the potential abuses Moskowitz says have already appeared. "Besides the issue with the cellphone company, the number of officers authorized to demand information has grown considerably in the year or so since the law was passed," she says.
The original idea, Moskowitz says, was that police would appoint a coterie of high-ranking officers to decide on a case-by-case basis whether use of the law's mandate was necessary. But that list has grown, she says, meaning that it's more likely that police will make use of the law.
A High Court session that was set to consider ACRI's petition this week has been postponed until next February, when seven judges will hear the case, instead of the three who had dealt with it until now.
Regardless of whatever adjustments are made, law enforcement - the police, military police, border police, tax authorities, Treasury enforcement, Justice Ministry and others - will still be carrying a huge stick. And for many of us who grew in Western cultures, that stick seems far too big for anyone to be carrying in what we hope can be considered a free society.
At first glance, that is. But in this age of super-databases, easy-to-access listening equipment, or hackers and crackers getting at our credit-card records, is there really anything such as "privacy" anymore? Without knowing too much about us personally, for example, Google and Amazon knows exactly what ads to flash at us or what specials to tout in their e-mail offers. If once there was six degrees of separation between any two random people in the world, today there is one: your fire wall - and when a hacker breaks it (as s/he can relatively easily), your data joins the rest of the world.
Is it unreasonable for law enforcement to have access to the same information any dedicated 16-year-old can get at? And if a 16-year-old can operate under the radar, what about sophisticated terrorists?
Even ACRI sees a need for the law, Moskowitz says, adding: "We can understand the need for police to make their own decisions, to act quickly even without the authority of a judge, even without a specific threat or 'smoking gun.'" But, she says, "There needs to be a balance. We are giving police a lot of power and we are hoping they will do the right thing. We want to be sure this isn't too much power for them to handle.
"But on the other hand, we don't want the Mafia to think we're going to work to give them a free pass; in such circumstances, police should be free to act."
Security versus freedom is a debate that has been ongoing around the world since 9/11. But Israel's Big Brother law is definitely one of the most "advanced" - meaning severe - anywhere in the free world. Can we handle it? Can our police handle it?
Maybe - hopefully - our past experience with heavy security will be a guide for us here, too. Visitors are often struck at how many guns - big ones - are displayed out in the open by IDF soldiers traveling on buses, hitching rides or sitting in cafes.
In other countries, most of us would get very nervous seeing a machine gun resting on the lap of a 20-year-old napping while on a long-haul bus ride. But somehow, in Israel, we "know" that everything is going to turn out okay; everyone's a soldier, or at least everyone's father, brother, sister, uncle or cousin is, or was. We know them. They certainly wouldn't hurt the ones they love; they are in the army strictly to protect themselves, their family and community. They can be trusted to walk around with an Uzi.
Not everyone has a relative in the police department, but somehow, we consider them mishpaha, family, as well. And your relatives would never do anything to really hurt you, would they? Well, here's hoping!
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