High Court puts the heat on Shin Bet coronavirus surveillance
The High Court had previously appeared to support Shin Bet surveillance of coronavirus-infected citizens.
By YONAH JEREMY BOBSECURITY SURVEILLANCE monitors. Privacy advocates argue that even if the official transfer of data does not identify individuals, anyone who wants to abuse the information to invade an individual’s privacy can do so with ease(photo credit: KAI PFAFFENBACH/REUTERS)
The High Court of Justice on Tuesday put the heat on the government about continuing the Shin Bet (Israel Security Agency) coronavirus surveillance, with an interim order demanding to know why the program should not be significantly limited.More specifically, the justices said the government must explain within 21 days why the surveillance should not be restricted to cases where an infected person refuses to cooperate with the state’s epidemiological investigations.In addition, the court ordered the state to explain why it has failed to make Magen 2 a serious alternative or replacement for Shin Bet surveillance.On October 22, the High Court had appeared to strongly support Shin Bet surveillance of coronavirus-infected citizens.High Court President Esther Hayut, Vice President Hanan Melcer and Justice Neal Hendel bore down on Association for Civil Rights in Israel lawyer Gil Gan Mor with hard questions about how they could justify ending Shin Bet surveillance, which the Knesset has authorized.At the same time, the High Court requested a number of technical clarifications from state lawyer Shosh Shmueli, but had seemed to apply less pressure.In the balance is whether the Shin Bet will continue its surveillance of the country’s infected citizens for a somewhat indefinite period, or whether the practice will be stopped or some kind of new limits may be instituted.From the start, Gan Mor argued that other countries are using tools that are less invasive to citizens’ privacy and that Israel’s Magen application, which can be downloaded voluntarily, along with an increase in coronavirus epidemiological investigators, can replace the Shin Bet.Melcer pushed back hard on these assumptions, saying “if there is no other replacement method, then there is nothing else to do. You start from the premise that other democratic countries have other tools, like the tool of the Shin Bet, but they are not using them,” but when you say Magen can replace the Shin Bet, “both here and in other countries, almost no one downloads it.”He added that if people will not use it, there is no real alternative.Gan Mor said that people are not using it because the government has downplayed it publicly, and because people knew that the Shin Bet was still performing surveillance.Essentially, the justices said that now the Knesset has spoken and authorized Shin Bet surveillance, including a need to reauthorize it in the Knesset every three weeks, there is sufficient oversight and the court has no business intervening.When Gan Mor invoked the court’s earlier intervention on the issue this past spring, the justices demurred saying that they had to intervene then because the Knesset had not yet authorized the Shin Bet surveillance and it was being carried out on the mere authority of a transitional government.From mid-March until June 9, the Shin Bet was given emergency powers to track coronavirus infected citizens with limited oversight.During that time, the High Court of Justice and the Knesset Intelligence Subcommittee both set deadlines for the program to become regulated by a long-term law that would more carefully calibrate the balance between security and human rights.But the deadlines were flexible and repeatedly extended with no clear end in sight.
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