Israel's High Court of Justice held a hearing Wednesday on a petition filed by human rights groups against the cabinet's decision to allow the Shin Bet security service to track citizens in its fight against the omicron variant of the coronavirus.
Israel, via emergency order, 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.
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The petition was filed by the Association for Human Rights in Israel, Adalah, Physicians for Human Rights and Privacy Israel. They are asking the High Court to issue an order banning the participation of the Shin Bet in the fight against the coronavirus until a ruling is made on the petition.
The organizations cited precedent on the matter, arguing that the High Court has previously ruled that the costs of allowing the service to use cellphone geolocation 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 argues that should 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 orders.
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The court has discussed the matter in depth and found that the marginal benefit of using the Shin Bet geolocation service is not significant in stopping the outbreak of the disease, and its damage is greater than its benefit, said the petitioners.
“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 emphasized the cabinet was aware of the exceptional use of the regulations. As a result, they said, the cabinet decided to allow the use of the Shin Bet’s technological tools for only five days and for the purpose of locating patients in a focused manner, limited only to 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.”
The government rejected the petitioners' claim that the renewed use of the Shin Bet geolocation tools violated the High Court’s previous ruling in the April 2020 petition on the matter. In that decision, the High Court ruled that it was possible to authorize the Shin Bet under the Israel Security Agency Law, which grants the Shin Bet to respond in times of emergency – but that primary legislation will be required later. “Now, we face a new variant of the virus, which in light of the mortality it caused within a short time in South Africa and the exceptional speed of its spread, has a large potential of rapid infection and harm to the immune system,” said the state.
According to the state’s position, the unknown nature of the omicron variant places Israel back in a similar position to the onset of the pandemic, because it is different to previous variants of the virus – and we still do not know how quickly it spreads and its effect on the immune system.