High Court appears to back Shin Bet coronavirus surveillance

A heated part of the hearing was where Gan Mor accused the state of using the Shin Bet because they do not trust citizens to tell the truth.

By YONAH JEREMY BOB
High Court of Justice prepares for hearing on whether Prime Minister Benjamin Netanyahu can form the next government, May 3, 2020 (photo credit: COURTESY HIGH COURT OF JUSTICE)
High Court of Justice prepares for hearing on whether Prime Minister Benjamin Netanyahu can form the next government, May 3, 2020
(photo credit: COURTESY HIGH COURT OF JUSTICE)
The High Court of Justice appeared to strongly support Shin Bet (Israel Security Agency) surveillance of coronavirus-infected citizens, in a hearing on Thursday that put on display how much the world has changed even since the summer.
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 applied 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.
A heated part of the hearing was where Gan Mor accused the state of using the Shin Bet because they do not trust citizens to tell the truth, citing a recent IDF report that said that 30% of its citizens lie or under-report with whom they have had contact.
Gan Mor said using the Shin Bet in such a way violates basic tenets of democracy, similar to if the state investigated citizens about the truthfulness of their answers to their doctors in general.
By Thursday night, the High Court had issued an interim ruling requiring various updates from the Knesset and the government on November 1 and November 5.
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.
So even if pressure from the High Court and the Knesset helped bring the surveillance to an end, the real decisive factors were the drop in infections from 16,000 total to under 2,000 total, as well as the sustained opposition of Shin Bet director Nadav Argaman.
Argaman had never wanted to track citizens in the first place, preferring to be laser-focused on tracking terrorists.
From June 9 until June 22, there was no Shin Bet surveillance and no real talk about it.
But as infection rates spiked from under 2,000 to double that number – and eventually much larger numbers – Prime Minister Benjamin Netanyahu already started campaigning to bring the program back.
Argaman’s opposition slowed Netanyahu this time, but the jump in infection rates led the prime minister to continue to push forward regardless, and the surveillance was reactivated by the end of June.
At a Knesset hearing around that time, Intelligence Ministry acting director-general Ronen Herling said that he wanted to get the alternative Magen application to a point where it could reach around 60% of the population before dropping the Shin Bet program.
Magen has not gotten close to that level of cooperation from the public.
The question now is whether the High Court will allow Shin Bet surveillance indefinitely until there is a vaccine – which could mean eight months or more – or whether it will enforce some limits based on infection rates which are stricter than the current Knesset approach of extending the surveillance as long as Netanyahu wishes.


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