400,000 Israelis Were Wrongly Quarantined by Shin Bet Tracking, Top Court Says

'Shin Bet tracking is meant to be used to monitor enemies of the state, not its own citizens,' Israel's High Court president says

Netael Bandel
Netael Bandel
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The Ayalon mall in the Tel Aviv suburb of Ramat Gan, November 27, 2020.
The Ayalon mall in the Tel Aviv suburb of Ramat Gan, November 27, 2020.Credit: Moti Milrod
Netael Bandel
Netael Bandel

Almost 400,000 people were mistakenly quarantined due to the Shin Bet security service’s cellphone tracking, Israel's High Court of Justice said Sunday in one of several comments critical of the agency’s effort to track coronavirus patients.

Taken altogether, these problems make it legally difficult to automatically extend the law enabling such tracking, the seven-justice panel said during a hearing on a petition against the law.

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Justice Anat Baron termed the law “draconian,” while Justice Isaac Amit said the law allows Shin Bet tracking “only when the danger is defined as clear and present.”

Data submitted by the state shows that the effectiveness of the cellphone tracking has declined significantly, Amit added. In July, the Shin Bet identified 20 to 30 percent of all coronavirus patients, but by January, this figure was down to nine percent.

Esther Hayut presiding over the High Court. Her actions in the coming weeks will define her legacy, and much more.Credit: Emil Salman

Moreover, he noted, 600,000 people ordered to quarantine due to Shin Bet tracking appealed the order to the Health Ministry, and 60 percent of them did so successfully. Adding in the estimated 15 percent who were wrongly ordered to quarantine but didn’t appeal, “we’re talking about almost 400,000 people who were wrongly quarantined,” Amit said. “If it took each of them three days to get released, that’s 1.2 million workdays lost to the economy.”

The law enabling Shin Bet tracking is due to expire on January 20. The state had argued that since the Knesset has dissolved and the government is now a caretaker government, the tracking policy can’t be changed until a new government is formed after the March 23 election. Therefore, it said, the law should be automatically extended.

High Court President Esther Hayut noted that this would mean extending the law until July 2021, even though the situation has changed since the law was originally enacted last year, in part because people are now being vaccinated against COVID-19.

Government attorney Shosh Shmueli informed the court that in an unusual move, Attorney General Avichai Mendelblit has agreed that the Knesset can extend the law while also making changes to it, despite the fact that parliament has formally dissolved.

The court criticized the Shin Bet tracking both in principle and in practice. Hayut, for instance, said, “Shin Bet tracking is meant to be used to monitor enemies of the state, not its own citizens. This is coerced tracking to which the people being tracked haven’t consented.”

Such an infringement on individual rights might nevertheless be deemed proportionate, but only if the tracking had proven to be greatly beneficial, she added.

Shmueli said that even though the Shin Bet currently identifies only nine percent of all coronavirus patients, “the absolute numbers are high. This is around 9,000 patients, which isn’t a small number. We’re talking about many people who didn’t infect others.”

“The importance of this tool is that it identifies a nonnegligible group of patients,” she added. “Every person who was in contact with a patient has the potential of getting sick, or the potential that he will be asymptomatic and not get sick himself but will infect others.”

Attorney Gil Gan-Mor of the Association for Civil Rights in Israel, which filed the petition, charged that the government had debated for weeks over whether to extend the law, “but then, when it realized there’s no majority for continuing the tracking, it circumvented the Knesset via a law that authorizes the technical extension of laws that expire during the election season.

“This is precisely the case in which the government has a duty to bring the Knesset a new bill, since this is temporary emergency legislation that gives the government extreme, draconian powers,” he added. “Here too, we hope the court will set boundaries for the government and oblige it to take the high road.”

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