Coronavirus: High Court limits Shin Bet surveillance of citizens

A majority of an expanded seven justice panel of the High Court of Justice on Monday limited continued use of Shin Bet (Israel Security Agency) surveillance of coronavirus-infected citizens.

The two main limitations the court placed on the surveillance were a suggestion to consider ceasing it entirely as of March 14, as well as an order that after that date it can only be used in limited circumstances – at least until the Knesset passes new legislation.

After March 14, the Shin Bet could use surveillance only in cases of citizens who do not cooperate or who did not remember well enough to be effective with an epidemiological probe.

Further, the court did not address the legality as a long-term issue, saying judicial restraint was required in this ongoing corona crisis period.

The ruling comes out of a petition by the Association for Civil Rights in Israel (ACRI) and others seeking to strike the Shin Bet surveillance as unconstitutional.

Six justices, including High Court President Esther Hayut, Vice President Hanan Melcer, Daphna Barak-Erez, Yitzhak Amit, Neal Hendel and Noam Solhlberg voted together on a majority of the issues.

Justice Anat Baron dissented, saying that the Shin Bet surveillance was completely unconstitutional and should be stopped immediately.

Coming from the opposite view, Hendel and Sohlberg both agreed with most of the majority opinion, but amended comments that they did not want to unduly limit the government’s use of the Shin Bet in a crisis.

ACRI said that its petition had met with some success by limiting the Shin Bet surveillance, but that it hoped that the government would take the underlying message to heart and end the surveillance entirely.

Likewise, the government’s Privacy Authority praised the court’s decision, noting it had opposed continuing Shin Bet surveillance without limitations.

However, it was unclear whether the High Court’s decision would truly allow for a permanent change in policy or whether it could be brushed off by any future increase in infection rates.

Prior High Court rulings after the first wave were observed formally, but ignored in spirit by the government which pushed through continuing Shin Bet surveillance even after the intelligence agency itself opposed the program in June 2020.

In fact, one basis the High Court cited for limiting the program on Monday was that both the Shin Bet and the Privacy Authority were ironically united against the government in their desire for limitations.

Further, the High Court said that the government seemed to be ignoring two major changed circumstances: the fact that epidemiological probes had already replaced the Shin Bet as the main infection trend detector as well as the high success rate in vaccinations nationwide.

In a January hearing, Hayut had openly suggested a one-month one-time extension to the government, which was noncommittal at the time.

In addition to the broader question of whether the Knesset law empowering the Shin Bet to perform the surveillance could ever be constitutional, the High Court has been in the odd position of having to decide whether to extend the law beyond its expiration date.

When the Knesset passed the law in July 2020, it declared January 20 as the expiration date of the special Shin Bet coronavirus surveillance power.

This expiration date was put in place given that, throughout the country’s history, the Shin Bet has been focused only on terror threats and has been almost always instructed to stay away from surveillance of citizens.

Given the strong opposition to permitting the Shin Bet to carry out surveillance on regular citizens, the Knesset believed it was important to make it clear that the power was temporary and only for the coronavirus crisis.

However, the Knesset recently dissolved and the timing caught the government by surprise, such that the legislative branch did not get to the issue of extending the expiring law.

A lawyer from the Attorney-General’s Office, Shosh Shmueli, argued to the court in January that the old law could be automatically continued until July 2021.

This would be based on a general principle that extends Knesset laws, which are necessary for continuing to run the state on an ongoing basis, until a new government arrives that can address issues in a more permanent fashion.

The justices had seemed nonplussed by this idea, yet they did not act.

The Knesset Foreign Affairs and Defense Committee extended on February 15 the Shin Bet surveillance until at least March 3, with the implication that they would continue to extend the authorities every three weeks going forward.