Opinion |

It’s Time to Replace Shin Bet Tracking

Michael Birnhack, Karine Nahon and Haim Ravia
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People wearing masks walk in Jerusalem, July 9, 2020.
People wearing masks walk in Jerusalem, July 9, 2020.Credit: Emil Salman
Michael Birnhack, Karine Nahon and Haim Ravia

The second wave of coronavirus infection in Israel has also ushered in a second wave of tracking the country’s citizens by the Shin Bet security agency. During the first wave, they told us that there was no alternative, no other possible approach, and that the situation was urgent. They also told us that it was temporary.

The initial decision to make use of the Shin Bet relied on emergency regulations – without the approval of the Knesset. Then it was based on a cabinet resolution that authorized the Shin Bet to act with the approval of the Knesset’s Foreign Affairs and Defense Committee. The government also told the High Court of Justice that it was just temporary, and the justices approved it. The justices noted that it didn’t exactly involve national security, but they authorized it due to the exceptional circumstances and politely asked that the Knesset do its job and pass primary legislation on the matter.

LISTEN: Protests, pandemics and Netanyahu's day of reckoningCredit: Haaretz

When the second wave of COVID-19 cases erupted, at the cabinet’s initiative and with the Knesset’s compliance, special temporary legislation was passed that remains in effect until July 21. The persistent pleas of Shin Bet director Nadav Argaman were of no use. He was concerned about the harm that would be caused by exposing such tracking technology to the public, and apparently knew that it wouldn’t work well. After all, it wasn’t designed for such a use in the first place.

In fact, the massive use of the Shin Bet’s cellphone location technology made the system collapse. The extent of the errors in the system, it turned out, were huge, sending thousands of Israelis into quarantine by mistake, causing them loss of income and unwarranted fear, in addition to the harm it inflicted on the economy.

When individuals sought to appeal the quarantine orders, they had no one to talk to, and when staff at the Shin Bet tried to rectify the situation and lift quarantine orders at their own initiative, there were Israelis abroad who were informed that their quarantine was being canceled – even though they had never been in quarantine. One has to assume that there were also errors of the opposite kind – people who had to be quarantined and were not located.

A civilian crisis needs to be addressed by civilian means. The Shin Bet’s involvement to deal with the coronavirus pandemic wasn’t appropriate from the beginning, and not only due to the technical difficulties and the absence of a suitable epidemiological network. By its very nature, the Shin Bet operates in a twilight zone of sorts.

Involving the security agency in the fight against the coronavirus placed it in the spotlight, and sunlight doesn’t suit such an organization. Transparency is not part of its organizational DNA. The agency is also not suited to such a task. It’s not the job of a security agency to profoundly infringe on the privacy of individuals in a situation that is not related to national security. In addition, there still hasn’t been a thorough enough debate over the price that is being paid as a result of the Shin Bet’s tracking from a medical, security, social and economic standpoint, in addition to the price paid by Israel’s democracy.

The Knesset’s Foreign Affairs and Defense Committee will be debating a bill this week that would enshrine the Shin Bet tracking of epidemics in law. That presents an opportunity to rethink the approach. There are dozens of apps around the world that assist in detecting contacts that coronavirus patients have had with other people. The apps aren’t a substitute for epidemiological investigations or testing, but they do provide one link in a system aimed at breaking the chain of infection as quickly as possible.

If there are weak links, the entire system is weak. The apps around the world have a variety of configurations, including some, such as the Israeli Health Ministry’s Hamagen app, based on location, and others based on proximity and contact, meaning who was near whom for a sufficient amount of time to prompt concern over infection, without knowing where they were. There are apps that feed all of the information to a single agency and others that are designed to be decentralized.

The government is trying to minimize the importance of the invasion of privacy involved in Shin Bet tracking. Granted that when the issue of privacy is pitted against that of human life, the decision is clear, but that is not how this should be presented. Civilian-based apps attempt to achieve both. It’s an approach involving “engineering of privacy” that, from the outset seeks to embed privacy protection in the system, without forgoing the overall goal.

For example, Hamagen is an app that Israelis are free to download voluntarily. Location information is only stored on the user’s cellphone, which is where the user’s location is cross-referenced with routes taken by coronavirus carriers. The user is free to delete the data at any time. The design of the Hamagen software is also open and available to the public for examination.

A screenshot of the Health Ministry's coronavirus tracking app 'hamagen' (literally, the shield) on the Apple App Store.Credit: Haaretz, Apple, Israel Health Ministry

A Knesset bill drafted by a group of 15 experts in the fields of law, technology and society, including the three authors of this column, offers a clear legal framework for a civilian alternative to cellphone tracking by the Shin Bet. At the heart of the proposed legislation is the requirement that the government develop and advance special apps rooted in the “engineering of privacy” approach, which was barely done in the case of the Hamagen app.

The Shin Bet’s tracking efforts have run their course. The cybertechnology nation that Israel is can provide a fitting civilian alternative.

Birnhack is a law professor at Tel Aviv University, Nahon is a professor at the Interdisciplinary Center in Herzliya and president of the Israel Internet Association, and Ravia is a lawyer and founder of Privacy Israel.

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