The High Court of Justice said Thursday the Shin Bet security service may not track confirmed and suspected coronavirus patients if a Knesset panel to oversee this practice isn’t set up by noon Tuesday.
The tracking would be done using technology including cellphone location data.
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The justices also ruled that the police will be barred from tracking Israelis under quarantine; the police had hoped to use this method to ensure that anyone in isolation remained at home.
The court hearing took place in the shadow of the coronavirus crisis; no more than 30 people were allowed into the courtroom, and the judges sat two meters (6.5 feet) apart.
The justices, however, rejected Haaretz's request Wednesday to broadcast the hearing live, saying they did not want to encourage Israelis to go out onto the streets and protest.
Earlier Thursday, Attorney General Avichai Mendelblit told the Israel Democracy Institute that the government's approval of emergency regulations in the middle of the night without Knesset oversight was made with his consent. He said the public was not informed of the move because of the "schedule."
"From its inception, this move, initiated by the Health Ministry in collaboration with the relevant parties, has been accompanied by the legal counsel including three deputies to the attorney general and their staff, as well as the attorney general personally," Mendelblit said in a statement.
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The petitions were filed by the Adalah Legal Center for Arab Minority Rights and the Association for Civil Rights in Israel, on the grounds that the regulations violated Israelis' privacy.
"The usefulness of the draconian measures, obtained after sweeping restrictions on the public have already been imposed, is marginal compared to the serious violation of individual rights and the principles of a democratic regime," the Association for Civil Rights in Israel said in its peition.
In its response to the High Court, the state argued that the special measures were necessary to combat the spread of the coronavirus. "Excessive morbidity at a given time can cause the health system to collapse, as is the case in northern Italy – and thus a significantly larger number of patients and deaths," the state said.
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During the hearing, justices sought to determine whether, under these circumstances, a total lockdown would not be preferable, and when it would become necessary. “Learn from the world,” Justice Hanan Melcer suggested. “Impose a total lockdown that police will enforce – without using technology that has the problem of violating privacy.”
But public health services chief Prof. Sigal Sadetzki replied that “as long as the pandemic continues, we’ll need these technological tools – even during a lockdown.”
“You’re speaking from a health standpoint, but jurists must weigh other considerations," Chief Justice Esther Hayut said. "That’s why the question of how close we are to a total lockdown is a critical one.”
Hayut also asked the attorney representing the Knesset legal adviser whether the Knesset couldn’t convene the Foreign Affairs and Defense Committee to supervise the Shin Bet. The attorney responded that first the full Knesset must convene to appoint the Arrangements Committee, which will happen only on Monday. Then, the Arrangements Committee must appoint all the other committees.
The topic is controversial, after Knesset Speaker Yuli Edelstein, a senior member of Netanyahu's Likud, postponed the appointment of the committees on Wednesday. Kahol Lavan urged the High Court to order the Knesset to convene; their petition will be heard on Sunday.
A serious infringement on democratic values
But in a brief filed Wednesday, the Knesset had argued that using the Emergency Defense Regulations to authorize tracking coronavirus patients “seriously infringes on democratic values.”
Writing on behalf of the Knesset legal advisor, attorney Avital Sompolinsky said the government must bring the regulations to the Knesset for approval as soon as possible, as soon as the Arrangements Committee is formed and appoints a new Foreign Affairs and Defense Committee. “The use of the Emergency Defense Regulations should be a last resort,” she wrote.
The Knesset's legal adviser said Wednesday the government's plan to use mobile-phone location technology to track people infected with the coronavirus was “a serious infringement of democratic values,” despite the government's citing of the emergency situation.
Overnight Monday into Tuesday, the cabinet unanimously passed the emergency regulations for tracking the cellphones of coronavirus patients or those suspected of being infected, circumventing approval by the Knesset.
The ministers authorized the move despite the Justice Ministry's commitment to have it go through the Knesset, and after a subcommittee headed by Kahol Lavan co-leader and former IDF Chief of Staff Gabi Ashkenazi was unable to give an opinion.
The legal adviser's office intimated that the work of the subcommittee had been hindered by the fact that crucial information regarding the emergency regulations had been withheld from lawmakers after being classified 'Top Secret' by the Shin Bet.