Three takeaways from NSO-police spying controversy - analysis

Many public officials and hi-tech experts have demanded legislation to enforce clearer limits on future police use of hacking technologies so it's not left to the personal discretion of investigators.

 A police officer uses a radar speed gun to track drivers in violation of the speed limit, 2022 (photo credit: POLICE SPOKESPERSON'S UNIT)
A police officer uses a radar speed gun to track drivers in violation of the speed limit, 2022
(photo credit: POLICE SPOKESPERSON'S UNIT)

Did the police receive proper court approval for hacking into Israeli citizens’ cellphones?

As of Wednesday afternoon, it was still unclear what cellphone-hacking technology police used against citizens without proper court approval. Was it NSO’s Pegasus, a different NSO technology, Cellebrite’s technology, or some other one?

There was also a twist about the police possibly paying outside third parties to hack on their behalf so that they would not need to receive court approval. The police do use non-police as undercover informants at times, and not every act they undertake gets reviewed by a court. However, there is certainly no existing law that permits outsourcing hacking to non-police without a court order.

Some holes have been poked in the Calcalist article that broke the story on Tuesday morning, but many of those holes did not make the scandal go away as much as take it in new directions.

The police and Public Security Minister Omer Bar Lev initially seemed to deny the story categorically, but as the day wore on the story shifted to targeted denials along with silence or vague statements on other issues that seemed to confirm some of the allegations.

CMDR. Eliaz Haliva, head of the Israel Police International Cooperation Unit, with Supt. Micky Rosenfeld. (credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)CMDR. Eliaz Haliva, head of the Israel Police International Cooperation Unit, with Supt. Micky Rosenfeld. (credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)

For example, maybe the police did not use NSO’s Pegasus, but rather used a different NSO technology or Cellebrite’s technology. Or perhaps some hacking might have been carried out by paid non-police hackers.

The lack of full trust in the police narrative was confirmed by the state comptroller, the Privacy Authority and the Attorney-General’s Office, all announcing probes into the issue. Justice Minister Gideon Sa’ar said that both stories could not be true, the Calcalist’s and the police. He backed the investigations and did not seem to give the police the benefit of the doubt.

What kind of suspects did the police hack?

Israeli law provides for the Shin Bet (Israel Security Agency) to hack the cellphones of terrorists and even use enhanced interrogation methods on them to prevent terrorist attacks – even without a court order. But the police do not have these powers and always require a court order – partially because they handle regular criminal offenses from theft to bribery to violent crimes with no ideological component.

There have been reports that the police used Cellebrite’s technology on the cellphones of protesters against then-prime minister Benjamin Netanyahu, as well as against an individual it turned into a state’s witness against Likud MK David Bitan in a corruption case.

The police have not addressed these specific allegations as much as they have denied acting without court orders, and have said they have always followed the law. But this leads into the third point: if a court permitted the police to hack the cellphone of an Israeli citizen in order to take photos that could be used to turn him into a state’s witness in a white-collar crime case – should courts be approving such things?

Should court approval be enough in the current system when the police may be able to pull the wool over a judge’s eyes, or is new legislation needed to fix the issue?

Much of the controversy involves the idea that the police would hack citizens’ cellphones without a court order. Lt’s say the police are telling the truth and that in every case of hacking a citizen’s cellphone, they did in fact get a court order. Does the public want courts issuing such orders?

Certainly the public wants the police to be able to fight crime effectively, but that does not necessarily lead to the ends always justifying the means. What the public might expect a court to allow the police to do in fighting terrorism they might not accept when they are fighting white-collar crime, even if fighting white-collar crime is also important.

The issue is compounded by a track record in which a number of courts – even before this scandal – found that the police misled them, gave incomplete details or context, or otherwise used the excuse of “intelligence sources” to try to cover up breaking the rules.

Israel’s law enforcement agencies are not the only ones to get overzealous when fighting the bad guys. After 9/11, it was reported that US agencies routinely “played” the Foreign Intelligence Surveillance Court (FISA) to grant them authority for invasive measures based on an incomplete or misleading picture. This does not mean most police are not doing their crime-busting jobs properly. It does mean, however, that the public cannot simply put incredibly powerful new technology tools into the hands of law enforcement personnel unless there are clear and enforceable limits.

Several public officials and hi-tech experts have demanded legislation to enforce clearer limits on future police use of hacking technologies so that it is not left to the personal discretion of these investigators.