Law in the Internet Society

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

-- By SapirAzur - 22 Oct 2021

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 privacy violations and other civil liberties. One such reason could be war, threatening a country’s sovereign jurisdiction. But thinking critically about worthy reasons, who is to decide which causes rise above others? And who decides what grounds are proper, and what means are necessary?


There are two important causes that underlie this essay, the first is the basic right to privacy, and the second is public health. Is there a clear favorite between the two? I would argue that the right to privacy has become one of secondary importance in certain countries, and I would do so through presenting the case of Israel during the pandemic.

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.

The Israeli Internal Security Agency (“Shabak”) utilized mobile phone data surveillance mechanisms, initially used for counterterrorism, to implement “digital epidemiological investigations.” 2. To conduct those investigations, the Shabak used the cache memory of mobile phone location data in order to trace people who had crossed paths with patients.

Framing the question

Citizens and mass media have raised the following question - What measures were taken or should be taken to minimize privacy violations?; An article published in Nature Medicine Journal, “Mass-surveillance technologies to fight coronavirus spread: the case of Israel,” presented a similar question: “how to balance the need for a non-voluntary emergency mass-surveillance program against the risk of permanent damage to civil liberties during regular times?”; The article further offered a few compelling principles for maintaining privacy and civil liberties with cellphone tracking. Those principles include the need to continually re-evaluate digital surveillance, the supervision of the operation, augmenting voluntary participation, how the data is used, etc.

While this article offers compelling and perceptive suggestions, it seems to assume that the Israeli government prioritizes privacy rights. The distinguished authors of this article presume that these authorities do not have sufficient resources or capabilities to minimize privacy violations. Instead, I argue that they offer solutions to problems that the government simply does not desire to solve.

To support my claim, I would like to propose the following arguments:

1. While the Shabak’s operation was taking place, the Israeli health authority had some less radical efforts. The authority launched a new app that citizens voluntarily downloaded to trace its users to pinpoint coronavirus carriers and share this information with those users (with terms of use and privacy policy). The app attempted to frame the trade of private data as a transaction between two consenting parties, as several privacy laws (perhaps, also wrongly) assume. Millions downloaded the app, but the authorities yet determined that is merely not enough.

2. Surveillance was not the only severe privacy violation during the pandemic. According to The Israeli government deal with Pfizer, Israeli citizens would be the first to receive the vaccine, and Pfizer would receive citizens’ (statistical) medical data. Israeli officials argued that there was no “personal” data trade, but the public is skeptical. Even if the data is anonymous, it may still be crossed or engineered to reveal personal information on several populations in the community. Further, those citizens did not choose to participate in a genetic experiment or future genetic research of Pfizer. Perhaps several methods or even developing a cure to a certain disease contradict some people’s beliefs.

3. An annual report of the Israeli Privacy Authority for 2019-2020 has raised some alarming statistics. According to the report, among the private companies that met the Israeli Privacy Protection Law provisions, most did not satisfy the “Privacy Protection Regulations” requirements regarding data protection. Of the companies that the Israeli Privacy Authority investigated in 2019-2020, 71% failed to meet the regulatory obligations regarding the outsourcing of private data; 53% have satisfied the regulations at a mediocre level, and 18% at a poor level.

These findings demonstrate that privacy protection is simply not a top priority in Israel, but the same holds true for many other countries. Thus, to me, the question should not be how to minimize privacy violations, conditioned on public health being the first priority, but rather why do we willingly agree to give away this fundamental civil liberty right without a proper, thorough public discussion, weighing in the pros and cons of different rights, and by the end of which the government can make an informed decision.

In fact, the implications of personal privacy violations during the pandemic are far-reaching and might last long after the pandemic subsides. There will be more reasons for privacy violations other basic civil liberties in the future, and we have already proven to ourselves that we are willing to throw it away as soon as a need arises without careful consideration. Therefore, the question is how to make privacy a priority again and restore public recognition of the importance of privacy, and it is in our generation’s hands to make it one.

It's as though the Supreme Court never considered the Shin Bet's actions and never said anything about them.

Despite the passing reference to other countries' actions, these general issues are discussed as though a one-country sample would be sufficient context. Given the atypical nature of that tiny country's public health strategies, this is not a good assumption.

So if this is not really about the general issues, but rather a parochial discussion of why Israel abandoned the approaches taken by the majority of countries that worked with the Apple and Google platforms, or how it adopted the most intrusive possible technologies and empowered its secret police to act as public health management, the details of the legal maneuvering should be discussed. If, on the other hand, this is about the general issues discussed in this draft,, the actions of one tiny society should be placed in a more spacious context. Even a mere comparison with one other society, the one you are currently standing in, would help.

You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:


Webs Webs

r2 - 29 Nov 2021 - 13:29:16 - EbenMoglen
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