Israel Seeks to Give Police Unrestricted Access to COVID Contact Tracing Data

Proposed legislation would allow information on patients' movement and contacts, as collected by the Health Ministry and army, and possibly the Shin Bet security service, to be used for criminal investigations

Pedestrians check their phones in Tel Aviv, October 25, 2020.
Tomer Appelbaum

The cabinet wants to give the police unrestricted access to the information it collects from the contact tracing of coronavirus patients, for use in criminal investigations. This information may include details given to the Health Ministry as a result of tracking by the Shin Bet security service, even though current law forbids this.

On Saturday night, the Prime Minister’s Office distributed a draft of the proposed legislation, whose primary aim is to increase the fines for violating coronavirus regulations. But one of the clauses the cabinet seeks to pass, pending Knesset approval, relates to contact tracing, also known as epidemiological investigations.

The change would amend the section of the Public Health Ordinance that states: “Information obtained under this clause is to be kept solely in the Health Ministry information systems,” by adding “Nothing stated in this subclause detracts from the police’s authority under any regulation to obtain information if needed for a criminal investigation.”

The law that gives the Shin Bet the authority to track the cellphones of coronavirus patients forbids the use of information the service collects for any purpose other than contact tracing, including for criminal investigations or as evidence in court.

This change would essentially give the police unfettered access to any information obtained by the Health Ministry during epidemiological investigations to use in any criminal investigation, even if it has nothing to do with the coronavirus.

According to the explanatory notes, “The point of departure for any criminal investigation is that one must obtain any information relevant to uncovering the truth and enforcing the law, even if this undermines various rights or interests, since a criminal probe, by its very nature, is likely to undermine privacy and other rights.

"It should be noted that even though the suggested amendment allows the use of information in a criminal investigation, one must distinguish between the option of using the information and the policy of its use in practical terms. When a concrete question of using the information will arise, there will need to be an examination of the balance between the various interests based on the circumstances.”

The government also wants to allow epidemiological investigators themselves or any other official who has collected the information to transfer it to police if they believe that “this is necessary for conducting a criminal investigation.”

As of now, there is a distinction between contact tracing performed by the Health Ministry or the military and the Shin Bet's cellular tracking. During epidemiological investigations, a coronavirus patient gives the names of each person with whom they were in contact and each place they visited, along with other information intended to identify those who will need to quarantine. The investigator does not have full access to the information the Shin Bet collected by tracing the patient's cellphone, which is collected as part of a separate process.

The Shin Bet currently sends the Health Ministry the phone numbers associated with devices that were in close proximity to the coronavirus patient for over 15 minutes, without attaching additional information.

When reached for comment, the Prime Minister's Office referred Haaretz to the Justice Ministry, which is responsible for the memorandum. The Justice Ministry responded that "The proposed amendment is intended to clarify that the provisions of law that limit the use of this information are not valid regarding criminal investigations."

It is indisputable that contact tracing information is protected by the Law for the Protection of Privacy, it says, but the police are authorized to obtain any private information, and even sensitive information, related to an investigation if there is a suspicion that a crime has been committed, in accordance with legal instruction.

The ministry also noted that epidemiological investigations are not covered by physician-patient confidentiality, and the information is provided by the patients themselves. "This information does not come from Shin Bet tracking," the statement said. The Israel Police did not respond to requests for comment.