High Court Upholds Legality of 'Big Brother' Legislation

Law allows police to obtain communications data about any Israeli citizen from the country's Internet and mobile and landline telephone providers.

Tomer Zarchin
Tomer Zarchin
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Tomer Zarchin
Tomer Zarchin

The High Court of Justice upheld the constitutionality of a 2008 law allowing state investigators to obtain information about citizens' telephone, e-mail and text message use, on Monday. However, the justices also imposed restrictions on the collection of information under the Communication Data Law, popularly known as the "Big Brother Law," specifying it can only be used in investigations of specific suspects or victims, not "fishing expeditions."

The law allows police, military police, tax, antitrust and securities authorities and the Justice Ministry unit that investigates alleged police misconduct to obtain communications data about any Israeli citizen from the country's Internet and mobile and landline telephone providers, including customers' credit card or bank account numbers, the devices in their possession as well as details about their communications such as the type, date and duration of the call, e-mail message or text, and the identification of the recipients.

The law specifically excludes the content of the communications, which are covered in the law on wiretapping and electronic surveillance.

The ruling came in response to separate petitions submitted in 2008 by the Association for Civil Rights in Israel and the Israel Bar Association. The Israel Press Council joined them later, with a "friend of the court" brief in which it asked the court to focus on the potential damage the law could pose to journalists who must guarantee anonymity to many of their sources.

One argument raised by the petitioners was that the law's provisions disproportionately violated the right to privacy.

Earlier this month the Justice Ministry circulated a draft bill that proposed adding the agriculture and environmental protection ministries, the Israel Nature and Parks Authority, the Israel Antiquities Authority and the Defense Ministry's internal security department to the list of organizations authorized to receive communications data under the law.

Monday was the last day on which former Supreme Court President Dorit Beinisch, who retired in February, could still issue a ruling from the bench. She and her colleagues ruled that the "Big Brother Law" does violate the constitutional right to privacy, but allowed that it did not violate the principles of the state in light of the importance of the information covered by the law for fighting crime and enforcing the law.

Nevertheless, they gave a narrow interpretation of the law's provisions, not only restricting its use to the investigation of concrete suspicions, but also specifying that judicial permission must be obtained in all but the most urgent cases, in which the so-called administrative track could be invoked..

The justices accepted the state's position in regard to giving access to the communication data of journalists, according to which the extra-judicial administrative track could only be invoked if the journalist's life is in danger, or if the journalist is a criminal suspect. In such extreme cases, the justices said, this data could be revealed even at the risk of exposing the journalist's sources.

Israelis protesting against biometric database in Tel Aviv, 2009.Credit: Motti Kimche / Archive



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