‘The State’s Right’: Top Court Refuses to Rule on Israeli Sale of Spy Tech to Russia

Israeli defense exports not under court’s jurisdiction, justices rule, in what activists say is a death blow to ability to use courts to fight sale of cybertech to repressive regimes

Oded Yaron
Oded Yaron
Russian President Vladimir Putin talks on the phone. Israeli justices refused to hear a case about the sale of phone hacking tech to Russia
Russian President Vladimir Putin talks on the phone. Israeli justices refused to hear a case about the sale of phone hacking tech to RussiaCredit: SPUTNIK / REUTERS
Oded Yaron
Oded Yaron

Israel’s defense exports, including the sale of offensive cyber technologies to foreign countries, and the policy that governs them is beyond the jurisdiction of Israeli courts, the Supreme Court ruled Sunday. The court’s justices refused to hear a petition filed by human right activists against the director of Israel’s Defense Ministry and Cellebrite, the digital forensics company, for the sale of phone-hacking tech to Russia.

Cellebrite's flagship product is the UFED (Universal Forensic Extraction Device). It allows law enforcement agencies to extract data from locked mobile phones already in their physical passion. Cellebrite, which recently announced it was going public, works with law enforcement agencies and has a long list of clients – including regimes with shady human rights records. For example, until this year, the company's system was sold to China, who used it against pro-democracy activists in Hong Kong.

The firm vows it only sells its system to legitimate law enforcement agencies and defense forces, but investigations led by Eitay Mack, a lawyer and human rights activist, has helped reveal the company’s technology has been sold to countries and forces implicated in human rights violations. Their technology has been used by regimes to crackdown on political dissent and has been sold to bodies under international sanctions.

A USB device is attached to Cellebrite UFED TOUCH, a device to extract data from a mobile deviceCredit: Issei Kato/ REUTERS

The case against Israel's Defense Export Control Agency, the Defense Ministry, and Cellebrite was filed by Mack together with 80 human rights activists after they revealed documents that link Cellebrite’s technology with the persecution of political actors as well as minority groups in Russia.

Among them Lyubov Sobol, a lawyer for the Anti-Corruption Foundation headed by Alexei Navalny, was mentioned.

After the documents were revealed, Cellebrite announced it would also halt sales of its technology to Russia and Belarus. In the past, the company denied the sale of technology to the dictatorship, but investigative agencies reported that the Lukashenko administration has purchased and used Cellebrite's hacking technology since 2016.

Justices Anat Baron, David Mintz and Alex Stein threw out the case filed by human rights groups against the ongoing export of the technology to Russia and security organizations linked to Russian President Vladimir Putin.

It is worth noting that Cellebrite has halted the sale to Russia on its own accord after the initial petition was filed against them over the sale of their UFED technology to the country and to Belarus. Nonetheless, the groups argued that the case should still be heard by the court because it could require Cellebrite to stop supplying software updates for devices that were already sold to the countries.

These devices, they claimed, are still being used against pro-democracy and human rights activists in the country. The justices rejected the argument and refused to hear the case.

“The decision by regulators and those overseeing the exports is accepted… on the basis of defense considerations and Israel’s international commitments,” they wrote, ruling that the state maintains the prerogative to lead such sales. “Like with other issues relating to national defense and security, the prerogative is the state’s and the law provides it with very wide discretion.

“The court does not intervene in such matters, except in extreme cases involving abuse of authority, conflict of interests or extremely unreasonable conduct.”

Mack, the lawyer, told Haaretz that the ruling renders moot the ability of activists like himself to use the courts to try to halt Israel’s tech sales to repressive regimes through legal means.

“This is the first time courts have rejected a petition flat out, without even seeing the secret evidence the state could supply and without asking its representatives questions about these materials. There is simply no more point in filing these petitions,” he said.

Mack has led a number of such legal processes, revealing a string of controversial sales by Israeli companies to foreign regimes with a chequered human rights record. However, he now says, “it is amazing that the Jewish and democratic state decided that preventing genocide, crimes against humanity, war crimes and severe human rights infringements, is not something the courts should focus on.”

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