Existing law doesn't allow the Israel Police and Shin Bet to use spyware, the Association for Civil Rights in Israel and the Tel Aviv University Law Faculty Privacy Clinic argued in a petition to the Supreme Court calling for law enforcement to cease using the invasive tools.
The use of spyware by law enforcement had been rationalized through the 1979 Wiretapping Law, but the petition argued that the old law was not technologically up to date and didn't cover malware.
The Attorney-General's Office had adopted the opinion of the 2021 report by Deputy Attorney-General Amit Merari, which had been tasked with reviewing police spyware usage. The opinion held that infecting a device with spyware was acceptable under the wiretapping law through the allowance for the entering of premises to implant physical listening devices.
The petition argued that wiretapping devices were fundamentally different in utility than the programs used by law enforcement. Wiretapping could allow the police and Shin Bet to listen in on real-time conversations.
Spyware allows real-time and past voice and written correspondence, access to applications that manage bank accounts, medical files, dating sites, and allows altering the content of the device. The petition argues that this is a severe violation of privacy beyond what the decades-old law allowed.
The petition called for a court injunction on spyware until the court's decision. The NGO and university said that the Knesset should draft legislation that sets limits and rules for using spyware.
'Ethical, ideological, political, and professional-technological discussion'
"All over the world, evidence is accumulating on the damage of surveillance systems in general, and of spyware in particular," argued ACRI Civil and Social Rights Unit director Gil Gan-Mor and Privacy Clinic director Noa Diamond."The debate as to whether law enforcement agencies should be allowed to use spies is an ethical, ideological, political, and professional-technological discussion and it should take place in the parliament, after a long and public discussion. There is no place to allow the introduction of these measures in the dark, based on an expansive interpretation of old laws."
The petition echoed the position of the Public Defender's Office. In a March 20 letter, the Public Defender appealed to the Attorney-General's Office, arguing that spyware fundamentally altered the device in a way that wiretaps didn't, and that the infected devices constituted an object and not a premises. Both consent and collection of data were not covered under the law.
Israel has been grappling with the controversy of the "NSO Pegasus" scandal, in which over a thousand phones had been infected with spyware between 2015-2021.
Last Sunday the cabinet approved the establishment of a controversial committee to investigate the conduct of police and the State Attorney's Office in the procurement and operation of spyware.
The Attorney-General's Office warned against the broad investigation powers of the committee, saying that it had no authority to review ongoing cases, especially the ongoing corruption trial of Prime Minister Benjamin Netanyahu.
Last Wednesday ex-Shin Bet (Israel Security Agency) director Nadav Argaman and former IAF commander Amir Eshel filed a petition to the High Court arguing that the committee aimed to interfere in Netanyahu's trial.