Spy agencies and human rights in the era of coronavirus

Can the public’s right to privacy coexist with the government’s fight to curb the pandemic?

SECURITY 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)
SECURITY 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
The Shin Bet tells you when to go to the doctor, the Mossad brings you your medical equipment and NSO Group or some other private organization may hold on to your private information until you are coronavirus-free (and maybe even after?).
Do you recognize this world? It is a world in which government spy agencies and private organizations with alumni of those agencies are far more deeply involved in Israeli citizens’ lives and internal issues than ever before. It is a corona world where spying meets human rights.
Former Shin Bet chief Yaakov Perry told the Magazine this week that there “must be parliamentary oversight. This is problematic during this time. Yes, there are some operating Knesset committees, but there is not really fluid parliamentary oversight.”
The country “must reduce Shin Bet tracking when we are at the end [of the corona crisis] or even near the end of the crisis,” he added.
Of the three involvements of current or former Israeli intelligence agencies in handling aspects of civilian life related to the coronavirus crisis, the role of the Mossad would seem to be the most positive.
TO DATE, the Mossad has succeeded in bringing 10 million masks, hundreds of thousands of test kits (predicted to eventually reach around four million) and a variety of other medical items to the country in rapid fashion. Significant portions of the items were brought from moderate Sunni Arab countries that do not have diplomatic relations with Israel – at least one of the reasons the Mossad needed to be involved. Generally speaking, this is only a plus.
The government and the Health Ministry, according to numerous official reports, were inadequately prepared with enough medical equipment to cope with the crisis, and the Mossad stepped up to the plate to fill some of the holes. But some questions have been raised about involving the agency.
Some have said that the Defense Ministry could have done a better job than the Mossad as a larger organization with a larger permanent presence overseas. However, the most interesting major twist that has been raised about the Mossad’s involvement in purchasing medical equipment relates to tactics.
What happens when you move a spy agency used to bending laws, doing targeted assassinations and stealing Iranian nuclear secrets into acquiring medical equipment in a competitive environment? In an interview in late March with Channel 12 News, “H,” the Mossad’s project manager for the medical equipment acquisition efforts, seemed to admit that the agency had stolen some items from other countries trying to buy the same items. The seeming admission was significant because there have been rampant stories in the global media of competition between countries, sometimes underhanded, to acquire scarce medical supplies to cope with the corona crisis.
In probably the most sensational storyline, six million masks purchased by Germany appeared to have disappeared into thin air at an airport in Kenya. Both Germany and France have at times accused the US of possibly intercepting purchases they had closed, though there are innumerable players in the arena to purchase medical items and no one has definitively accused a specific party of piracy. The Magazine has learned that H “misphrased” his comment.
It is absolutely true that there is a torrid competition going on between nations to buy up corona-related medical supplies anywhere they can be found before they dry up. H even described some of this competition in the Channel 12 interview. This included instances where Israel believed it had a done deal only to show up to pick up items at what it found to be an empty warehouse. In other cases, one part of a foreign government was ready to sell medical items, but the transport of the items was blocked by a different arm of the same government.
In this hazy malaise, the Mossad has used all formal and informal connections and tactics at its disposal to outcompete other countries in order to ensure that Israel not only gets into the ring, but actually ends up with the medical supplies physically in its hands for its citizens.
An apt analogy might be basketball, where “boxing out” another player with physical contact is mostly allowed as long as you are seeking the basketball and are not focused on fouling the other player. Some of the best rebounders of all time who got the ball in their hands when several players jumped for it, learned how to push physical contact all the way up to the line where it could be called as a foul, without actually crossing the line (or without crossing it too far).
This is what the Mossad has been doing, and partially explains why it is involved in trying to get the medical items. But the Magazine has learned that it has redlines and has not stolen items that others paid for and that Israel did not purchase. This does not necessarily resolve all of the questions about the Mossad’s involvement, but all of these questions pale compared to the severe questions about the Shin Bet’s surveillance of coronarvirus-infected citizens, which started in mid-March.
ACCORDING TO a 2002 Shin Bet Law, the agency is charged with defending the homeland from terrorism, mainly under the assumption that its actions will be taken against hostile foreigners. The Shin Bet has never had any kind of broad power to deal with or spy on Israeli citizens, and has had zero authority to carry out surveillance of any Israelis unless there was overwhelming evidence of their involvement in terrorism.
Suddenly, the Shin Bet is tracking not only Israeli citizens who have committed no crime other than to be infected by the coronavirus (which is not a crime), but also third persons who were in the vicinity of infected persons over a period of days. The homeland security agency is now using “back doors” to look at where infected citizens have been as well as tracking text messages and telephone calls between those infected citizens and others.
If these surveillance powers reach their furthest extreme, they could mean tracking down the entire country’s population, far more than police, who need to get court approval for wiretaps. No other democracy brought in an intelligence agency to perform the tracking, though almost every country has rushed after citizens’ metadata to achieve similar purposes.
All over the EU, countries have ordered or persuaded telecoms to pass on customers’ metadata en masse in order to follow trends regarding their infected citizens. In Germany, Deutsche Telekom handed over data on 46 million customers, a pattern which is repeating itself, with variations, almost across the board. Part of what is mind-blowing about what is going on within the EU is that its prized General Data Protection Regulation for protecting privacy went into effect in 2018 as the most serious regime in the world for protecting privacy.
PRIVACY ADVOCATES have slammed the EU regulators for losing their will and their nerve in one of the first instances in which they faced a major test. EU regulators have responded either that the health emergency is so massive that they cannot spend any time considering privacy concerns or that they are ensuring that data is transferred in an aggregate or anonymous manner. In other words, they say that governments are getting to see the broad picture of what is happening with their citizenry, but cannot pinpoint individuals or their specific communications.
In contrast, privacy advocates have argued that even if the official transfer does not identify individuals, that anyone who wants to abuse the information to invade an individual’s privacy, can do so with ease. They say that cross-referencing various aspects of the information being provided with other information is an easy step. This means that, at the end of the day, there is no way to keep users and their data anonymous.
Many countries are also creating their own apps for their citizens to download and have their progress tracked. Some legal scholars in Israel, like Israel Democracy Institute fellow and former Hebrew University Law School Dean Yuval Shany, have said this kind of a program on a volunteer basis might be preferable to the Shin Bet program. Still, the universe has changed when such an app is considered the less intrusive option.
There are even EU countries using drones to track infected persons or to send them messages to stick to their quarantines.
Similar efforts are going on in the US, and the names of hacking companies like Clearview AI and Palantir have been coming up in the news as possibly being involved. Even Glenn Greenwald, who helped expose the US’s program for tracking data in the post 9/11 era along with Edward Snowden, has said that the enormity and speed of the crisis has left him more ready to entertain some compromises on privacy issues which he would normally fight with all of his might.
All of this is also shocking because only weeks earlier, the West was slamming China for many of the same tactics (though China’s surveillance state has gone even farther than Israel and appears to have even fewer checks and balances). The Western media had also criticized South Korea for surveillance that led to public revelations about where some of its citizens were spending some embarrassing night-owl hours.
Perry told the Magazine, “In a democratic state where the intelligence services are under the chain of command of the prime minister – and they usually have very tight public oversight from the Knesset, the comptroller and some of the ministers – it is very legitimate to use their intelligence abilities when in the peak of a crisis whose consequences are unforeseeable… to protect public safety.”
Compared to other countries’ intelligence agencies, he said, the Shin Bet has “far more experience” with using tracking technologies, which explained part of why they were brought in to the fold.
He pointed out that “the Mossad is also helping with the crisis by purchasing medical equipment,” while reiterating concerns that the involvement of the intelligence agencies “needed to have a clear end date” so as to avoid long-term violations of privacy and abuse.
BUT WHAT will happen when the crisis ends, or even when it is more “under control?” Will governments who gained access to this new data, simply and immediately give up this access? Many in law enforcement and other parts of governments have wanted access to this data for years, only to be turned back until the coronavirus crisis.
This is where the way the data is handled and what limits are placed on its transfer can be crucial. Important limits include oversight by the legislative and judicial branches of government and strict time limits for how long surveillance can continue.
In his 2016 book, Between the Rule of Law and States of Emergency, Haifa Professor Yoav Mehozay wrote that Israel’s ongoing state of emergency since its founding “has had a far greater impact on the general populace than previously thought.” He argued that the role of “emergency powers goes beyond what is commonly understood as security measures in the struggle against the Palestinians… the execution of economic policies with emergency powers clearly demonstrates… an impact on every Israeli resident.”
Further, he wrote that, “in Israel, governmental flexibility has gone beyond the use of emergency powers as legal exceptions… they are an integral part of Israel’s governing methodology.”
Mehozay’s book is a long list of instances where different Israeli governments used emergency powers to deal with an issue even if the ruling coalition likely could have dealt with the issue by passing a new law in the Knesset. Does this mean that Israel could be a country uniquely at risk, among democracies, of hoarding personal data even after the peak of the corona danger passes? Unfortunately, there are hints that the potential danger could be serious.
Shany and other scholars and human rights advocates have said the surveillance program should expire no later than April. The Association for Civil Rights in Israel has a petition before the High Court stating that the program must end if the Knesset does not pass a new law, including a full debate about what kinds of checks and balances should be involved.
In contrast, to date the High Court did force the government to hold hearings on the surveillance program in the Knesset’s Intelligence Subcommittee led by Gabi Ashkenazi (Blue and White.) But Ashkenazi’s committee decided to pass on requiring a new law as long as the government made some minor changes they requested and will keep them in the loop going forward.
The message that Ashkenazi appeared to send the government was that even though it started the program without any oversight from the Knesset, there would be no consequences as long as his committee received updates. The changes Ashkenazi’s committee made were exceedingly minor and no real deadline or solid benchmarks were set for ending the Shin Bet surveillance. There was also no real threat that Ashkenazi unveiled to show that the government could lose something if it draws out Shin Bet surveillance too long.
All of this after Deputy Attorney-General Raz Nizri frankly admitted on a press call that he and a variety of government officials had numerous preliminary meetings about Shin Bet surveillance a week before it started – without a word to Ashkenazi’s committee. Nizri justified this based on the idea that they should present only a finalized plan to the Knesset.
But this sounds like circular reasoning when Nizri and the Attorney-General’s Office also gave a green light to the program for nearly two weeks without Knesset approval when they said that the committee was not moving fast enough on the issue. Either Knesset oversight means something and then they needed to be brought into the process earlier, or the government gets penalized for ignoring the Knesset, or Ashkenazi’s committee becomes at most a “fig leaf plus.”
AFTER ALL of this, at least the Shin Bet is an agency directly controlled by the state and one that is not motivated by personal profit. Yet, the last piece of the spy puzzle – in this case former intelligence agents possibly from NSO Group – jumping into the coronavirus crisis potentially in conflict with human rights, involves concerns of personal profits motivating behavior.
Regarding NSO Group, there has been a concerted effort to move aspects of the Shin Bet surveillance program – notably storing telephonic data – over to them. This idea, mostly pushed by Defense Minister Naftali Bennett and his Yemina ally Ayelet Shaked, immediately set off alarm bells.
NSO is beloved by the Israeli defense establishment. When Amnesty International sued in the Tel Aviv District Court to block NSO’s export license, dozens of Israeli defense officials showed up at the court hearing to impress upon the court the importance that the organization plays for Israel.
The Magazine has met with top NSO officials, and they emphasize both the organization’s unparalleled ability to hack and track terrorists’ cellphones as well as the foreign policy gains to Israel by virtue of an Israeli company assisting European countries and even Middle East countries with whom Israel lacks formal diplomatic relations.
But many say there is a dark side to NSO. There is a debate as to whether NSO actively undertakes positive activities only to combat terror or also is directly involved in helping authoritarian countries with suppressing dissent.
NSO says that all of its activities are fighting terror, drug lords and child pornography, but it has admitted that in at least three instances it had to cut off client-countries who had abused its technology. There has been extensive speculation about Middle Eastern countries, Poland and elsewhere where its technology has been potentially misused.
Even if NSO has the best of intentions, critics say that giving it responsibility for Israeli citizens personal data would be opening Pandora’s box. In early February, Elector, a private company hired by the Likud to help it more optimally use voter registration data on its activists’ cellphones, accidentally publicized the entire Israeli voter registry of 6.5 million persons online. There has been no way to undo this damage.
The prosecution has been slow to take action, as legislation covering such an unintentional infraction is hazy about the consequences and who can be penalized. What if the Shin Bet hands over citizens’ personal data and NSO unintentionally flubs on privacy protection or an NSO employee or affiliate goes rogue with the data? (This has also happened at least once, in January 2019).
When Shaked raised the issue in the Knesset Intelligence Subcommittee, Chairman Gabi Ashkenazi shot the issue down. However, Shaked said she would continue to raise the issue.
The debate about NSO then had a spin-off question when it emerged that NSO President Shiri Dolev is close friends with Shaked. Dolev even appeared with Shaked in a 2017 video, with Shaked saying she was one of her closest friends. Questions were asked in the media about whether Shaked had a conflict of interest. Shaked rejected these allegations in a telephone interview with the Magazine, saying that by definition there can be no conflict because she has no executive branch position to make policy.
She also added that she has not tried to cover up her relationship with Dolev. In contrast, critics said that Shaked should not be on an oversight committee for a controversial group where a close friend of hers is a top official.
Bennett said there was a principled reason to move the data to NSO, which was that it has a new data analysis tool that can carry out epidemiological studies of much larger numbers of infected Israelis than the Health Ministry. The defense minister did not address concerns about alleged past abuses by NSO or its clients, focusing on the unique contribution he believes it could deliver for rating Israelis’ level of infection or potential infection in a way that would save lives.
None of these issues are easy to sort through and it is clear that during the corona era, privacy will not be what it has been until now. However, Israel’s decisions to involve spy agencies was not the only possible choice available and the possibility of continued involvement of spy agencies in the battle with corona going forward will continue to draw scrutiny.