High Court orders state to reply on Shin Bet corona tracking legality

This interim decision came only an hour after a number of human rights groups filed a petition requesting that the High Court declare the restoration to be illegal.

 Prime Minister Naftali Bennett arrives to a cabinet meeting at the Prime Minister's office in Jerusalem on November 28, 2021. (photo credit: MARC ISRAEL SELLEM/POOL)
Prime Minister Naftali Bennett arrives to a cabinet meeting at the Prime Minister's office in Jerusalem on November 28, 2021.
(photo credit: MARC ISRAEL SELLEM/POOL)

The High Court of Justice on Monday ordered the state to reply regarding the disputed legality of the new restoration of Shin Bet (Israel Security Agency) tracking of coronavirus-infected citizens by Tuesday at 3:00 p.m.

This interim decision came only around an hour after several human rights groups filed a petition requesting that the High Court declare the restoration to be illegal.

Petitioning NGOs include the Association of Civil Rights in Israel, Doctors for Human Rights and Privacy in Israel, and Adalah. The petition came only a day after the government declared the new policy in a series of announcements to cope with the impending new Omicron variant crisis.

Between March 2020 and March 2021, the High Court and the Knesset both issued a number of rulings about whether and to what extent the Shin Bet could be involved in tracking COVID-19 carriers.

 Shaare Zedek hospital team members wearing safety gear as they work in the Coronavirus ward of Shaare Zedek hospital in Jerusalem on September 23, 2021.  (credit: YONATAN SINDEL/FLASH90) Shaare Zedek hospital team members wearing safety gear as they work in the Coronavirus ward of Shaare Zedek hospital in Jerusalem on September 23, 2021. (credit: YONATAN SINDEL/FLASH90)

According to the NGOs, the problem at the outset is that the Shin Bet Law tasks the agency with combating terrorism, not with tracking its own citizens who might be sick or might have come into contact with someone who is or was.

Yet, when the World Health Organization declared corona a pandemic on March 11, 2020, and the whole world suddenly shut down, the government of former prime minister Benjamin Netanyahu authorized the agency to track corona-infected citizens on the basis of Israel’s emergency regulations.

The petition noted that the High Court previously ordered the Knesset to pass a full law to permit and regulate Shin Bet involvement in corona tracking and made it clear that the initial reliance on the emergency regulations was a one-time move which would be illegal in the future.

Shin Bet tracking then was activated and deactivated multiple times as corona waves came and went.

Finally, when the third wave almost completely dissolved this past March and spring, the Knesset blocked the government from continuing Shin Bet tracking.

The NGOs noted that, even more significantly, this past July the law expired, which had been the basis for Shin Bet tracking since Spring 2020 with no one trying to extend it.

Essentially, Prime Minister Naftali Bennett indicated on Sunday that his plan was for Shin Bet surveillance of the coronavirus to only be in effect without a real legal basis (improperly using the emergency regulations) until Thursday, while the Knesset in the meantime will try to fast-track reauthorizing the tracking.

However, the Joint List’s opposition to the legislation might push even a fast-track attempt off until next week.

Bennett also said that, if in March 2020 the security agency could track just about anyone who might have come into contact with someone with corona, the current five-day authorization is far more limited.

The Shin Bet can only track those who are already confirmed as being sick with corona or who are sick with the new Omicron variant.

Finally, Bennett said that the Shin Bet will only do contact tracing, but will leave enforcement to the police – and if Omicron leads to a broader outbreak, the agency will cease its involvement.

Many of these limits come directly from the High Court’s latest ruling on the issue this past March.