Beinisch: Even if 'big brother law' is misused, it may be constitutional

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Petitioners against the "big brother law" approved by the Knesset last year charged on Tuesday that the allegedly widespread use of the law by police since then proves it encourages violations of the basic right to privacy and is therefore unconstitutional. The petitioners, including the Association for Civil Rights in Israel, the Israel Bar Association and the Press Council, have asked the High Court of Justice to reject provisions of the law, including the right of policemen and other investigators to access the communications data bank without court approval. The petitioners also want to prevent the police and other investigators from using the law to obtain information in cases where the allegations are not serious and amount to misdemeanors (that is, crimes calling for a maximum sentence of three years). The law enables the police, the Military Police, the Police Investigations Department in the Justice Ministry, the Tax Authority and other government agencies to obtain information regarding the whereabouts of all telephone users, the phone calls they have received or made on land or cellular lines, the Web sites they have browsed and the identities of e-mail correspondents. "Since January, there has been a dramatic increase in the use of the law," said attorney Dori Spivak, head of Tel Aviv University's Human Rights Program, on behalf of the Association for Civil Rights in Israel. According to figures submitted by the police to the Knesset Law Committee, the police asked to access the data bank on 775 occasions without court permission in the last six months of 2008 and 1,275 times in the first six months of 2009. Furthermore, of the 9,600 police requests from the court to authorize access to the data bank, 1,885 involved allegations of "social and public order." There was no explanation of what the suspected crimes involved but Spivak said it sounded like they were not serious. Attorneys Dan Chai, who represented the Israel Bar Association, and Orna Lin, who represented the Press Council, argued that the law did not sufficiently protect professionals including journalists, lawyers, doctors and others whose work required professional discretion. The state's representative, Dana Briskman, argued that the fact that the police and other authorities had made extensive use of the law did not prove that it was unconstitutional. "The fact that it is being so heavily used proves that the law was necessary to fight crime," she said. Supreme Court President Dorit Beinisch appeared to agree. She told the petitioners that the fact that the law was used so much, or even the fact that it might have been misused, did not necessarily prove it was unconstitutional. The issue at stake was whether the law, as written, inherently violated human rights, she continued. Because the petitioners are asking the court to overturn parts of a Knesset law, a panel of seven Supreme Court justices is hearing the case. The court will hand down its decision at a later date.