Explainer: What Israel Police Did, Who Was Hacked With Pegasus and How It May Affect Netanyahu’s Trial

The answers to all your questions regarding the latest NSO scandal, which has seen the company's Pegasus spyware turned on Israelis

Chen Maanit
Chen Maanit
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NSO
Credit: Ohad Zweigenberg
Chen Maanit
Chen Maanit

What are the main allegations against the police in this affair?

Police allegedly made illegal use of NSO’s Pegasus spyware program, and perhaps other similar programs, to hack Israelis’ smartphones, both to obtain information from them and to eavesdrop on other nearby phones. The hacks were allegedly carried out without the requisite judicial warrant.

Some of the hacks allegedly targeted people who weren’t suspected of any crime or involved in any investigation, merely for the sake of collecting information about them.

What does the law allow police to do in this regard?

Police are authorized to collect information through spyware only with a judge’s approval. Courts can issue three different types of search warrants.

One allows police to collect only communications data, such as who used a given phone, whom they spoke to and when. It doesn’t allow police to listen to the content of the calls or read the messages.

The second authorizes a full search. This means police can seize the device and copy all the material on it, including material that has been erased.

Either of these warrants can be issued by a magistrate’s court judge. But the third type, a wiretapping warrant, can be issued only by a district court president or deputy president.

This warrant lets police listen to conversations or other communications made through a given device from the moment the warrant is issued until it expires. The eavesdropping is done by the police’s cyber unit.

Whose phones were hacked?

According to media reports, the targets included senior public servants such as mayors and ministry directors general, journalists, suspects and defendants, and social activists involved in protests by Ethiopian Israelis and the disabled. They also included witnesses in the bribery case against former Prime Minister Benjamin Netanyahu, as well as Netanyahu’s son Avner and some of Netanyahu’s aides.

What are the legal implications of illegal use of spyware?

This would seemingly violate several laws: It would constitute illegal wiretapping, fraud, breach of trust and an overreach of investigators’ authority. If police hacked Netanyahu’s son, this could also constitute a national security crime. Consequently, if the various investigations now underway find evidence of illegal hacking, the officers involved could be indicted.

What happens to evidence gathered through illegal hacks?

The Supreme Court has repeatedly ruled, most recently regarding the phone searches of two Netanyahu aides (Jonatan Urich and Ofer Golan), that evidence will be deemed inadmissible only if it has been obtained in a grossly illegal manner. Usually, illegally obtained evidence is deemed admissible, though it is sometimes given less weight. If police indeed hacked phones illegally, the courts would weigh the gravity of the offense against the harm that disqualifying the evidence would cause.

Justice Minister Gideon Sa’ar is currently working on legislation that would automatically disqualify any evidence obtained through illegal means. That is the law in the United States, and it’s meant in part to deter police from using illegal means to begin with.

How will this affair affect Netanyahu’s trial?

At the defense’s request, the court ordered the prosecution to look into the matter and determine whether the financial daily Calcalist is correct in reporting that police illegally hacked witnesses in the bribery case as well as one co-defendant, Iris Elovitch. If they did, the court will have to decide how to handle each piece of illegally obtained evidence.

In that case, the defense will likely ask the court to cancel all or part of the indictment against Netanyahu and his three co-defendants (Iris Elovitch, her husband Shaul and publisher Arnon Mozes) on the grounds of a miscarriage of justice. But courts rarely cancel indictments for this reason. They do so only if they conclude that the police or prosecution has behaved so scandalously that any reasonable person would be outraged and conclude that a gross miscarriage of justice has occurred.

What do police say about the reports?

So far, police have rejected all the allegations and tried to downplay their importance. Police Commissioner Kobi Shabtai said Tuesday that an internal police investigation has thus far uncovered no violations of the law, but he has ordered the investigations and intelligence department to review all the alleged hacks reported over the previous day.

In a letter sent to police officers, Shabtai wrote that he has also requested the appointment of an external inquiry commission headed by a judge. The police have nothing to hide from the public, he added.

Who is investigating the allegations?

They are currently being probed by a three-person team headed by Amit Merari, the deputy attorney general for criminal affairs. But over the past two days, three ministers – Sa’ar, Public Security Minister Omer Bar-Lev and Finance Minister Avigdor Lieberman – have called for establishing either a state commission of inquiry or a government commission of inquiry into the matter. Either one would have greater powers than Merari’s panel.

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