When a bill dealing with law enforcement and communications data was submitted to the Knesset in 2007, it was blasted by jurists, lawmakers and human rights activists alike. It was dubbed “the Big Brother Law.”
Nonetheless, the disturbing proposal, officially named the Enforcement Authorities – Communications Data Law, passed. In 2012 it was even ratified by the High Court of Justice when a panel of seven justices denied petitions against it by the Civil Rights Association and the Bar Association.
The law enables the police and other enforcement agencies to obtain personal information on any person from cellular phone companies and internet providers on the person’s whereabouts, names of persons or organizations called or emailed, websites visited, and more.
The justices, headed by former Supreme Court president Justice Dorit Beinisch, agreed that the law could lead to a serious violation of privacy, but ruled that the infringement was proportional.
“After examining carefully all the arrangements in the law and its procedures, we’ve concluded that since the proper interpretation to activate these powers – which mainly calls to apply it sparingly and only in the necessary circumstances – we found no cause for constitutional intervention,” wrote Beinisch.
Monitoring smartphone owners’ calls and internet activity could enable ongoing and unsupervised access to individuals’ lives (and to the lives of third parties associated with them), while they have no control of the extent of information that might be exposed to the investigators, says the NGO Privacy Israel today.
Information the police provided in response to the NGO’s request for freedom of information raises grave doubts regarding the trust Beinisch and her colleagues had placed in the authorities. The justices didn’t give the enforcement authorities carte blanche to use the law for any purpose, but counted on the oversight bodies – the courts, which sign the surveillance orders, the Knesset’s legal advisor, who receives reports about exigent requests with no court order) and the Knesset itself, which was supposed to supervise the law’s application.
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However, a year before the verdict, the Knesset’s oversight duties had ended, as the period for that oversight had been limited by law to four years. Another important oversight body also didn’t do its job, it appears from the data gathered by Privacy Israel.
Year after year the courts approve almost 100 percent of the police’s surveillance requests, although the number of requests spike continuously
The data reflects that the police’s surveillance acts are increasing systematically,” lawyer Naama Mataraaso, CEO of Privacy Israel told Haaretz.
“In view of the unprecedented extent of requests the Knesset must hold an urgent discussion of the issue and demand to increase parliamentary oversight on the police, as stipulated by the temporary provision that expired in 2011.
“Every year there are more requests to obtain media data, more permits are given without a court order and the time lengths are longer and longer,” she says.
“The existing legal oversight is supposed to enable an examination of each individual case, but looking at the data and comparing the years, you see that the police are developing surveillance habits that demand a thorough and profound inspection.”
The law outlines three ways to obtain information from the media companies. The first is by means of a court order signed by a judge, enabling to obtain information for periods ranging from hours to more than a year. The second enables the police to take the information under exigent circumstances. This does not require a court order but is restricted to 24 hours (the attorney general, who receives a report every three months, is tasked with supervising this).
The third way is through a data bank set up by the police for information about cell phone and internet subscribers and cellular antenna locations.
Requests with a court order in one year: 16,677; without a court order: 40,677
In the first year after the legislation (2008-2009) less than 10,000 requests were submitted to judges, all of which were granted. Some 2,000 urgent requests, which are limited to 24 hours, were made without a judge’s approval.
Privacy Israel’s new figures reveal that by 2016 24,800 requests had been made with a court order and 11,922 urgent requests without an order.
Haaretz reported as much at the time, noting that the growth rate for fast-track requests that don’t require court approval jumped nearly 21% in 2016 and since 2011 have risen 174%, according to the figures obtained by Haaretz in 2018.
Moreover, under Section 4 of the law, known as the “administrative channel,” an authorized police officer can make direct a request to a provider “for the purpose of preventing an offense, revealing its perpetrator or saving a life.” In 2016, a quarter of all requests came under Section 4.
In 2020 the number of requests rose to 40,677 – a rise of more than 400 percent compared to the first year). The number of requests with no order spiked to 16,644, more than 800 percent more than during the first year.
Matarasso says the lengths of time for the requested orders also continued rising.
The increase is also reflected in the kind of information the police requested. Requests for details of subscribers rose by 103 percent during 2016 – 2020, while requests for traffic details rose by 104 percent and requests for location information rose by 169 percent.
When the High Court of Justice wrote the verdict, they already had data pointing to the significant growth in the use of the law in the first two years of its implementation. The data showed the requests for surveillance had risen by 50 percent from the first year to the second. Beinisch mentioned that in the verdict, but she and her colleagues stressed that they had confidence in the state’s oversight agencies.
“It seems to us that there isn’t yet a justification for our intervention in this connection. Our position is based mainly on the fact that the attorney general and the Knesset are responsible for overseeing the law’s implementation,” wrote Beinisch.
“Their job is just starting out. However, the material submitted to us and the Knesset’s arguments show that the Knesset is acting as it is obligated to and is aware of the fear of abusing the law or expanding it improperly.”
What happened to the Knesset’s oversight?
Since the temporary provision had expired by the time Beinisch wrote the verdict, she wrote “the validity of this clause should be extended. It can and should be made permanent.” This did not happen and now there is no oversight.
The Israel Police said in response: “The communications data law regulates the authority of the police in this field for purposes of saving lives, prevention, investigating offenses and apprehending offenders. Since the law was passed, the police have been meticulously exercising their authority in accordance with the law and only after obtaining judicial or administrative permission. The authority granted to the police by law when it comes to administrative permission is limited and overseen by the Attorney General in a timely fashion.”