Law in the Internet Society

Consolidating civil liberties and public health: the case of Israel during the pandemic

-- By SapirAzur - 22 Oct 2021 (revised 8 Jan 2022)

While data protection laws aim to protect us from private companies’ ambitions, it appears that they often fail to protect citizens from their governments, who possess tremendous power to justify the application of radical measures in delicate times. There are, arguably, worthy reasons that justify the violation of privacy and other civil liberties. One such reason could be a global pandemic. But thinking critically about worthy reasons, can legislatures be trusted to decide which causes rise above others? to decide what grounds are proper and what means are necessary?

Two important causes underlie this essay: the fundamental right to privacy and public health. Through presenting the case of Israel, I illustrate how a democratic country had hastened to adopt the use of highly intrusive technologies and compromise the right to privacy to manage public health; technologies that were originally developed to “combat hostile powers” were directed “towards citizens and residents” (translating quote from Chief Justice, E.Hayut). To further demonstrate the tension and balance between these two causes, I observe that the same country had decided to abandon those intrusive technologies, particularly during the peak of the latest variant, the Omicron, and summarize the chain of events that led to the abandonment of surveillance technology, suggest reasoning, and offer lessons for the future.

Chain of Events

In 2020, through the covid-19 pandemic, the world had witnessed an unprecedented regression in individuals’ privacy protection. Few government agencies worldwide (e.g., South Korea, Italy, Israel) had implemented the harnessing of surveillance records to trace coronavirus patients and establish virus transmission chains. Among those countries, Israel was the one to take an even more radical approach and measures, tracing potential contacts of infected individuals.

In March 2020, the Israeli government had issued Emergency Regulations authorizing The Israeli Internal Security Agency (“Shin Bet”) to utilize mobile phone data surveillance mechanisms, initially used for counterterrorism, to implement “digital epidemiological investigations.” To conduct those investigations, Shin Bet used the cache memory of mobile phone location data to trace people who had crossed paths with patients.

The emergency regulations were highly controversial and perceived as a swift and radical move that empowered a non-transparent authority to surveil citizens. The High Court did not strike down the regulations but repeatedly criticized the severe violation of civil rights and primarily the government’s inability to measure the efficacy of those technologies and identify data collection inconsistencies. It also expressed genuine concern around the ongoing use of what was initially meant to be a temporary tool:

"The use of tools developed to combat hostile powers and direct them towards citizens and residents of the country who do not seek to harm is an action that may keep sleep out of the eyes of any democracy seeker."; (Chief Justice E.Hayut)

A month ago, on December 2, 2021, the Israeli government officially announced it halts the use of those intrusive technologies.

Multiple reasons had probably led to the decision to stop the monitoring, including (but not limited to) (i) the formation of a new government and parliament with a different agenda. (ii) The accumulation of evidence and knowledge about the severity of the Covid-19 infection rate and severe cases, as well as the efficiency of the surveillance technologies compared to less invasive epidemiological measurements, and (iii) The State Comptroller’s report, supported by the Privacy Protection Authority, which criticized the government for entirely relying on surveillance technologies.

Morals from this case study:

1. Power corrupts, and absolute power corrupts absolutely. The Court of Justice had a critical role in restoring justice.

In my view, the case of Israel illustrates how democracies may fail in protecting fundamental rights. Though it had eventually quit using those technologies, I would argue that it was too little, too late. First, we have yet to learn all the implications, including irreparable damage. Second, we do not know what would have happened if The Court had not put such pressure on the government and if The State Comptroller and the Privacy Protection Authority would not have revealed poor results.

2. Civil rights violation is offered as the lesser of two evils. But is it really the lesser evil?

An article published in Nature Medicine Journal presented solutions to balance the risk of permanent damage to civil liberties during regular times versus the need for a non-voluntary emergency mass-surveillance program; the article further offered a few compelling principles for maintaining privacy and civil liberties while performing cellphone tracking. Those principles include the need to continually re-evaluate digital surveillance, the supervision of the entire operation, augmenting voluntary participation, the use of the data, etc.

3. Technology will not solve our problems for us, and it is our moral responsibility to exercise great caution in its application.

Were there other measurements that the state of Israel could have taken to monitor the pandemic? The answer is yes, and, in fact, in hindsight, it was demonstrated that these intrusive technologies did not add much value. Apparently, it was tempting to use cutting-edge technologies in the face of danger, which is a fact we should, as a society, be very cognizant of, especially when the price we need to pay for using such technologies has high consequences to our human rights.

In conclusion, human civil rights are the cornerstone of democracy. When they are being traded in exchange for immediate near-term gains, we should, as a society and civilization, weigh in not only the near-term outcome but also the ripple effect they have or will have on democracy. The 20th-century history has taught us that even the most horrible things can start democratically, and when we start trading away seemingly small things, like letting the government collect some ‘harmless’ data, it may very quickly become a slippery slope, where kids find it natural to be surveilled on demand. These kids will grow up to think that the right to privacy and other civil human rights are of secondary importance, and the actions they are bound to take on that belief makes it a short way to the loss of democracy.

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r3 - 09 Jan 2022 - 14:58:23 - SapirAzur
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