Israel's Top Court Rejects Petition Against Digital Tracking of Omicron Patients

Rights groups argued that early in the COVID pandemic Shin Bet tracking was ineffective and violated civil rights. The justices unanimously rule that the cabinet's decision wasn't disproportionately violating the right to privacy

Chen Maanit
Chen Maanit
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Israel's chief of public health services, Dr. Sharon Alroy-Preis, at the hearing at Israel's High Court of Justice, on Wednesday.
Israel's chief of public health services, Dr. Sharon Alroy-Preis, at the hearing at Israel's High Court of Justice, on Wednesday.Credit: Emil Salman
Chen Maanit
Chen Maanit

The High Court of Justice rejected Thursday a petition by rights groups against a cabinet decision to use Shin Bet digital technology to track omicron COVID patients, using Israel's Defense Emergency Regulations.

Justices Ofer Grosskopf, Neal Hendel and George Karra unanimously ruled that the groups failed to prove that the cabinet's decision disproportionately violates the right to privacy in a way that justifies disqualifying it.

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Israel, using its emergency regulations, instructed the Shin Bet to use its tools to monitor and locate people who were in contact with patients confirmed to be infected with the new COVID variant. Israel's emergency regulations allow the government to issue orders without proper parliamentary oversight.

The petition was filed by the Association for Human Rights in Israel, Adalah, Physicians for Human Rights and Privacy Israel. They asked the High Court to issue an order barring the Shin Bet from taking part in the fight against the coronavirus until a ruling is made.

A child tests for COVID-19 in the entrance to a musical, in Tel Aviv, on Sunday.Credit: Moti Milrod

The groups cited precedent on the matter, arguing that the High Court has previously ruled that the costs of allowing the agency to use digital tracking outweighs the benefits, and violates the right to privacy, freedom and dignity.

In April 2020 – at the height of the coronavirus pandemic and before vaccines were available – the High Court ordered the government not to authorize the Shin Bet tracking without legislation.

Based on this ruling, the petition argued that this should not be permissible in November 2021, when the government is properly prepared to deal with the pandemic, and that this is just another crude violation of the court’s decision and an invalid use of emergency regulations.

The court has discussed the matter in depth and found that the marginal benefit of using the Shin Bet tracking was not significant in stopping the outbreak of the pandemic, and that its damage is greater than its benefit, said the petitioners.

Israel's Health Minister Nitzan Horowitz and other top health officials at a press conference, on Sunday.Credit: Tomer Appelbaum

“In light of the great experience accumulated, authorizing the Shin Bet will not be a significant factor in preventing the spread of the variant, a conclusion that also led this honorable court to ban the continued use of the geolocation,” the petition said. “For a long period in which the geolocation operated, the Shin Bet exclusively located only a small amount of patients. About half the patients were not located at all, and among those who were located the great majority were located by human investigations.”

In response, the state and the Health Ministry said that the cabinet was aware of the exceptional use of the regulations. As a result, they said, it decided to allow the use of the Shin Bet’s technology for only five days and only for the purpose of locating patients suspected of being infected with the omicron variant.

“In practice, the issuing of an interim order at the present time would harm the Health Ministry’s ability to do all that is possible to try and stop the spread of the omicron variant in Israel,” said the state in its reply. Any use of the Shin Bet is “according to the model designed by the Health Ministry and which is reflected in the regulations is the specific operation before the variant spreads in Israel.”

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