In Dead of Night, Israel Approves Harsher Coronavirus Tracking Methods Than Gov't Stated

Government approves regulations permitting collection of data without court order, circumventing Knesset in the process ■ Data can be stored until regulations, which can be extended, expire

People walk near the Carmel Market on March 15, 2020.
Ofer Vaknin

The Israeli government unanimously passed in the early hours of Tuesday new emergency regulations for tracking the cellphones of coronavirus patients or those suspected of being infected, circumventing the approval of the Knesset in the process.

Ministers authorized the move despite the Justice Ministry's commitment to have it go through the Israeli parliament, which did not have the time to deliberate on the matter.

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The regulations sanction the Israel Police to track the cellphones of individuals who tested positive with the virus, or those who are suspected of having caught the disease.

On Saturday, following Prime Minister Benjamin Netanyahu's announcement that these means will be implemented, the Shin Bet said the technology would not be used to enforce quarantine.

Published in the dead of night in the state records, despite initially  being slated to be confidential, the regulations stated that there will be no need for a court order to collect the data. Normally, a court order is required for something like cellphone tracking, as it is considered a serious invasion of privacy if there is no basis for it.

According to the regulations, the data would be used to notify people who may have come into contact with someone infected with the virus and to enforce quarantine orders.

While the government has promised severe restrictions on its collection, including a requirement that all personal data be deleted after 30 days, the directive said that the data will be deleted when the regulations – which can be extended according to the progression of the virus – expire.  

Furthermore, the Health Ministry is allowed to keep the data for another 60 days beyond the regulations' expiration for the sake of an "internal inquiry of the activities conducted by the Health Ministry."

The regulations assert that no other use of the data is allowed, including for the purposes of a criminal proceeding, but despite government promises, it does not specify any punishment for someone violating this.

On Tuesday, Attorney General Avichai Mendelblit said that it would have been better to green light the regulations through the Foreign Affairs and Defense Committee in the Knesset, but added that due to the urgency of the matter it was decided to approve them without it.

Mendelblit stressed that emails and text messages of Israeli citizens won’t be monitored, saying that only "a small number of people will be exposed to the information." He also stressed that the "Shin Bet security service is obligated to report all its activities to the attorney general, especially when the the privacy of citizens may be compromised.

Once the 23rd Knesset convenes, the issue would be brought before the legislators in order to "allow parliamentary approval and supervision of such measures," the attorney general said.    

The ministers approved regulations authorizing the Shin Bet to track all those who came into contact with individuals suspected of being infected with COVID-19 prior to being diagnosed with the illness. To track these people, the Shin Bet will use advanced technology, usually utilized in counter-terrorism.

Moreover, the Shin Bet is authorized to gather information about the whereabouts of confirmed patients two weeks prior to being diagnosed.  

A Shin Bet employee who would use the information for purposes other than batting the coronavirus will face up to three year in prison, according to the regulations.  

The regulations that apply to the Shin Bet are more restrictive than those that apply to the police, as the agency won’t deal with supervising and enforcing quarantine, which will be solely under the purview of the police.

In addition, and contradicting statements made before the nighttime authorization, the regulations said the data will also be used to monitor adherence to quarantine orders, but only sporadically and not in an ongoing or consistent manner.

The police will be permitted to provide the Health Ministry with the most recent location of a self-quarantined individual in order to monitor whether the quarantine order is being followed.

The Health Ministry and the police are still supposed to establish a procedure to deal with how the data will be reviewed.

Deputy Attorney General Dina Zilber said that approving the regulations to employ emergency tracking measures is tantamount to placing a “band-aid on a bleeding wound,” adding that the move stemmed from the Health Ministry' demands to enable quicker access to people who were exposed to someone who contracted the coronavirus.

Moreover, Zilber said that the move was spearheaded by the Health Ministry. “The Shin Bet wasn’t looking for new fields of activity. The move was initiated because the ministry hasn’t been able to keep up with the fast contagion pace.

"Given that the current working assumption that quarantine is the only way to flatten the curve, it’s crucial to lower the number of people catching the virus and reduce the time for diagnosing new patients," Zilber explained.

"When the number of confirmed cases was small, we were able to launch an epidemiological investigation into each case. Now the number of confirmed cases has spiked, and the Health Ministry cannot afford to spend entire days on such investigations, "she added.

Zilber also said that the new regulations weren’t intended as a means to monitor coronavirus but “to reduce the time needed to locate people who are liable to contract the virus. It’s better to activate this channel now instead of waiting until tomorrow or the next day when many more people get sick,” Zilber said.

Prime Minister Benjamin Netanyahu said on Saturday that the Shin Bet security service would be tracking cellphones without a court order or judge's approval in order to notify people who had been in the vicinity of someone infected with the virus.

After several cabinet members expressed concerns over privacy, the government said the tracking would go on for 30 days, during which the Shin Bet provides all the collected data to the Health Ministry without making any other use of it.

After that, the government said, the data was to be deleted. Following public criticism, Attorney General Avichai Mendelblit said the cabinet and the Knesset would have to approve the move.

The Knesset subcommittee that oversees the security services' activities discussed the government's request on Monday, but did not finish and did not approve it. 

Kahol Lavan co-leader Gabi Ashkenazi, who also served as the chair of the Foreign Affairs and Defense Committee, slammed Netanyahu's decision to circumvent the committee and approve the cellphone tracking.

"The government approved in the dead of night, in a move of underhanded opportunism the emergency regulations, despite the fact that the Foreign Affairs and Defense Committee started discussing the matter yesterday, without given the option to seriously delve into the issue and complete deliberations," Ashkenazi tweeted.

"It's inappropriate to approve such a measure in this manner, without public and parliamentary supervision. I call to allow the establishment of the Foreign Affairs and Defense Committee (which was dissolved on Monday as the new Knesset was sworn in) as soon as today in order to immediately discuss the issue, and activate the necessary supervision as stated by the law," Ashkenazi wrote.