Victory Against Unlawful State Surveillance

3 March 2021

In a major victory for the right to privacy, Israel’s Supreme Court has placed major restrictions on the use of mobile phone surveillance of citizens for purposes of contact tracing by the Shin Bet, Israel’s internal security service. A majority of the expanded, seven-justice panel, presided over by Chief Justice Esther Hayut, accepted a petition by NIF grantees Association for Civil Rights in Israel (ACRI), Physicians for Human Rights Israel (PHRI), and Adalah – The Legal Center for Arab Minority Rights in Israel, which argued that the Israeli Security Agency had severely violated human rights, and that the practice was ineffective, especially given the efficacy of non-intrusive alternatives.

The Supreme Court ruled that tracking civilians was unconstitutional and that from March 14, 2021 onwards, the Shin Bet will only be allowed to place the app on the phones of citizens who refuse to cooperate with epidemiological investigators (contact tracers). The court strongly recommended that the practice should be discontinued altogether. Supreme Court Justice Anat Baron dissented, arguing that the intrusive surveillance should be immediately discontinued under all circumstances.

The court ruled that the continued use of phone surveillance by Israeli security agencies failed to take into account two major developments: the success of alternative, non-intrusive epidemiological methods by the Ministry of Health and the success of Israel’s vaccination program. The Shin Bet was also ignoring the matter that the Knesset law permitting the tracking expired on January 20, 2021.

ACRI welcomed the ruling as a victory: “We hope this ruling will lead the government and the Knesset to pause and change course from this slippery slope of using extreme and undemocratic means in the fight against the epidemic.”