National Security, Privacy, Data Protection and Retention
John Doe, Inc. v. Mukasey
Closed Mixed Outcome
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The Supreme Court of Israel held that the Israel Security Agency (“ISA”) is not constitutionally authorized to collect, process and use “technological information” of those who have tested positive for the coronavirus and their close contacts. The joint petitions were brought by the lawyer Shachar Ben Meir and rights organizations to challenge the Israeli Government’s decision (“the Enabling Decision”) to authorize the ISA to aid in coronavirus “contact tracing”. The Court found that section 7(b)(6) of the Israel Security Agency Law, 5762-2002 (“ISA Law”), which extends ISA jurisdiction to “essential national security interests of the State”, was too ambiguous to authorize such a significant expansion of the ISA’s activity over time without primary legislation. The Court further held that the Enabling Decision was a “serious violation of the right to privacy” [para. 36] and that, due to the fundamental importance of the freedom of the press, any contact tracing of journalists who tested positive for the coronavirus by the ISA would require their consent. While the Court appreciated the urgency of the public health crisis, it held that the “substantive flaws in the current mechanism” had to be replaced with a “transparent, voluntary mechanism.” The Court, therefore, recommended that Knesset Members implement primary legislation to continue the involvement of the ISA that is both provisional and a temporary order.
From April 2020, the coronavirus epidemic began to spread across Israel. At the time of the Court’s decision, on April 26, 2020, there were over 15,000 verified coronavirus cases and 200 deaths, as well as more than one million unemployed due to the resultant economic crisis. In response to the epidemic, the Israeli government adopted “exceptional steps” to control the spread of the virus, including quarantines and a policy of “social distancing”.
At the request of the Ministry of Health, the Israeli Security Agency (ISA) was initially authorized to perform contact tracing via “emergency regulations”. The Petitioners in the present case, lawyer Sachan Ben Meir, Association for Civil Rights in Israel, The Adalah – Legal Center for Arab Minority Rights in Israel and the Joint List Knesset faction, and Journalist Union, first submitted petitions addressing the power granted to the Government via a Declaration of a State of Emergency.
On March 19, 2020, following the hearing of the original petitions, the Court granted an interim order requiring the Knesset to establish committees to conduct parliamentary oversight of the ISA. On March 24, 2020, the relevant committees were established and the Israeli Government passed Decision no. 4916 (Enabling Decision), authorizing the ISA to conduct contact tracing by virtue of section 7(b)(6) of the ISA Law.
The Enabling Decision gave authorization to the ISA, under section 7(b)(6) of the ISA Law, to collect and process data from coronavirus patients, their close contacts and anyone in close proximity with them during the two weeks prior to their diagnosis. Section 7(b)(6) of the ISA Law permits the Government to expand its authorized activity, subject to certain conditions and the consent of the Service Committee. On March 31, 2020, the Service Committee approved the Enabling Decision, following amendments including a provision that requires the Minister of Health to regularly evaluate the need for the continued assistance of the ISA.
The Petitioners challenged the Enabling Decision on the grounds that the ISA does not have the authority to carry out tasks relating to civilian public-health under section 7(b)(6) of the ISA Law. Further, such authority should be enshrined in primary legislation and that civilian matters should be assigned to civilian agencies, private companies, the Ministry of Health or even the police. The Petitioners argued that the powers granted to the ISA by the Enabling Decision were a disproportionate infringement of the right to privacy and the right to dignity, especially as they were compulsory and lacked transparency. The Journalists Union additionally requested that journalists be exempted from contact tracing, to prevent the infringement of journalistic privilege and the identification of anonymous sources.
The Respondents, however, argued that the phrase “other national interests vital to the national security of the state” under section 7(b)(6) of the ISA Law is broadly defined. As such, it encompasses the need to limit the spread of the coronavirus epidemic. Concerning the arguments of the Journalists Union, the Respondents claimed that the powers authorized by the Enabling Decision do not infringe the freedom of the press. Rather, access to the data is limited and any risk of a chilling effect is outweighed by the necessity of stopping the chain of transmission of the coronavirus.
Chief Justice Esther Hayut delivered the majority opinion of the Supreme Court of Israel. Justices Hanan Melcer and Noam Sohlberg delivered concurring opinions.
The main issue before the Court was the legality and constitutionality of the powers authorized by the Enabling Decision to the ISA to assist the Ministry of Health in contact tracing.
To answer this issue, the Court posed three further matters for consideration:
Finally, the Court had to determine whether journalists should be excluded from contact tracing under the Enabling Decision in order to protect the freedom of the press.
The Petitioners in this case, lawyer Shachar Ben Meir, The Association for Civil Rights in Israel, The Adalah – Legal Center for Arab Minority Rights in Israel, The Joint List Knesset faction and The Journalists Union, submitted that the Government’s Enabling Decision was ultra vires, beyond its legal authority. The Petitioners argued that section 7(b)(6) of the ISA Law, which permits the Government to authorize ISA conduct to protect and advance “other essential national security interests”, should be “narrowly construed.” As such, enabling the ISA to investigate a civilian public-health matter is contrary to the ISA Law, which authorizes only security-related tasks. The Petitioners further argued that the powers authorized to the ISA by the Enabling Decision are a violation of the right to privacy and, according to Adalah and the Joint List, the constitutional right to dignity. They argued that the allocation of responsibility to the ISA to carry out a public-health duty changes the “checks and balances a democratic society”, in which mass surveillance of the citizenry by security services should be limited to matters of state security. [para. 10] The Journalists Union also argue that the Enabling Decision restricts the freedom of the press and source confidentiality, as sources may fear identification during “location tracing” by the ISA. As there are only 5,000 individuals holding press credentials in Israel, the Journalists Union submitted that excepting the press from contact tracing has a “defined and limited” risk.
The Respondents in this case, organs of the Israeli Government, the Knesset and the Chair of the Service Committee, Gbai Ashkenazi, submitted that the term “other national interests vital to the national security of the state” under section 7(b)(6) of the ISA Law includes a broad definition of security. The Respondents argue that the urgency of the need to halt the spread of the coronavirus epidemic falls within the scope of “national security” within the ISA Law. While they do not deny that the Enabling Decision restricts the constitutional right to privacy, the Respondents argue that it is a proportionate restriction, necessary to track the growing number of cases in Israel. The restriction must be balanced against the “right to life of the citizens and residents of the State of Israel, and the stability of the Israeli marketplace” [para. 12] Regarding the arguments of the Journalists Union, the Respondents submitted that powers authorized by the Enabling Decision do not infringe the freedom of the press. The personal information of a journalist who tests positive for coronavirus would only be provided to the ISA, the Ministry of Health and those granted access to the collected data. The Respondents had considered exempting journalists from contact tracing, but determined that the importance of halting the spread of coronavirus was of greater importance.
The Court began their analysis with the first matter for consideration: whether the phrase “other essential national security interests” in section 7(b)(6) of the ISA Law grants the Government the authority to engage the ISA in a civilian public health concern. Chief Justice E. Hayut adopted a “linguistic perspective” to determine the meaning of “essential national security interests.” The Court recognised that there is no universally accepted definition of “national security,” nor is there any comprehensive statutory or case-law definition set out in Israel. As such, Chief Justice E. Hayut held that the definition of “national security” may vary in different contexts.
The Court then evaluated the “normative purpose” of the ISA Law via its legislative history. (CA 6455/19 Yeruhamovich v. Official Receiver, (Jan. 28, 2020) [para. 9]) Transcripts of the Knesset committees revealed that members of the Subcommittee for the ISA Law expressed fear at the possibility that the Israeli Government may “improperly exploit the authority established under sec. 7(b)(6) of the Bill, and significantly expand the powers of the ISA to areas that deviate from the security matters for which it is expressly responsible.” [para. 18] Then Deputy Attorney General Meni Mazuz explained that the “essential national security interests of the State” could encapsulate economic issues such as industrial espionage or transnational crimes. On the basis of this legislative history, Chief Justice E. Hayut held that the authority of the ISA was “restricted only to areas directly related to the national security of the State”, not to civilian issues. [para. 20] Therefore, an overly broad, ambiguous interpretation of “national security” risks “employing the ISA’s abilities for missions that have absolutely nothing to do with the purpose of a preventive security organization” and could potentially pose a threat to the “existence of a democratic society.” [para. 21] Referencing international jurisprudence, the Court noted the widely expressed fear at the expansion of the meaning of “national security” over time, across Europe, Australia, and Canada. (E.g. United States v. United States Dist. Ct., 407 U.S. 297 (1972) , 314)
Following this analysis, Chief Justice E. Hayut concluded that section 7(b)(6) of the ISA Law should enable the Government to delegate authority to the ISA in matters that do not directly relate to security. The test to determine whether an issue concerns “national security” in this context was whether the matter is a “severe, imminent danger to the citizens and residents of the State or its regime.” [para. 23] This analysis includes both a substantive dimension and a time dimension. The substantive dimension stipulates that there be a “particularly high threshold of danger to the citizens and residents of the state,” beyond the matters typically dealt with by police and civilian enforcement authorities. [para. 23] The immediacy requirement of the time dimension necessitates that the danger must be such that there is no real, available possibility for implementing more appropriate alternatives. Therefore, the term “national security” may encapsulate certain “rare, exceptional cases in which there is a severe, imminent threat to the citizens and residents of the state or its regime.” [para. 24]
Applying this test to the coronavirus epidemic, the Court found that the outbreak of the virus meets the conditions of the test for a “severe, immediate threat to national security.” [para. 26] At the time of the Enabling Decision, a rapid response was required so as to prevent the spread of coronavirus. The Court recognised that not all public health crises amount to a “severe, imminent danger” to the state. However, the nature of the coronavirus pandemic and its threat to the health system and economic security of Israel meets the conditions of the test for a severe, immediate threat to national security.
The second matter considered by the Court was whether it was “proper” to use a Government Decision via section 7(b)(6) of the ISA Law or another path should have been taken to activate the ISA. Adalah and the Joint List relied on the principle established in HCJ 3267/97 Rubinstein v. Minister of Defense, IsrSC 52(5) 481 (1998) to argue that express authorization by the legislature is required for the executive branch to establish a primary arrangement: an arrangement that impacts basic individual rights or other matters of primary importance. The Court agreed that the Enabling Decision does establish a primary arrangement as it infringes upon basic rights and expands the involvement of security services to civilian matters. The Respondents argued that the urgency of the arrangement can influence the degree of explicitness required to delegate authority to establish a primary arrangement. (HCJ 4374/15 Movement for Quality Government v. Prime Minister , para. 61, per Justice N. Sohlberg) Chief Justice E. Hayut found that, at the time of the outbreak of the crisis, there was a severe and imminent threat to the state. As such, the Court held that “at the time the Government decision was made, the authorization granted under sec. 7(b)(6) of the ISA Law was sufficiently explicit.” [para. 29] However, authorization by virtue of section 7(b)(6) of the ISA Law cannot provide a sufficient basis for such an expansion of the ISA’s activity “over time without the legislature addressing the issue in the framework of primary legislation.” [para. 30] The Court, therefore, recommended that Knesset Members implement primary legislation to continue the involvement of the ISA that is both provisional and a temporary order.
The third matter considered by the Court was the proportionality of the infringement of the right to privacy caused by the Enabling Decision. The Court recognised that the Enabling Decision leads to an undeniable and serious violation of the right to privacy and intimacy. (CrimA 1302/92 State of Israel v. Nahmias , 353) Chief Justice E. Hayut noted that the right to privacy “is one of the freedoms that shape the character of the Israeli regime as democratic” (LCA 2558/16 A. v. Claims Officer of the Ministry of Defense , para 39, per Justice D. Barak-Erez) The violation of privacy was found to be particularly severe for two reasons: that it was the State’s preventive security service tracking the State’s citizens and that the means chosen are a “coercive mechanism that is not entirely transparent.” [para. 38] The Court further criticised the “shroud of secrecy surrounding the use of the mechanism in its current format,” recommending greater oversight mechanisms. [para. 38] Consent by individuals to the data collection was another “central pillar” of the right to privacy which must be included in any such programs. Applying the proportionality assessment, the Court recognised the undeniable advantage of rapidly locating persons that had come into contact with a coronavirus patient. The proportionality analysis, however, is significantly influenced by the time at which the assessment is made. While the reliance on the ISA at the outbreak of the virus was justifiable, the Court found that efforts must be made to find an “effective alternative.” Such an alternative should recognise the “substantive flaws in the current mechanism” and aim to adopt a “transparent, voluntary mechanism.” [para. 42]
The final consideration of the majority opinion concerned the Journalist Union’s argument that the enabling decision amounts to a violation of the freedom of the press and source confidentiality. The Court recognised the importance of the freedom of the press in a democracy. The Court recommended that the Government Respondents consider reviewing a list of journalists with press credentials. Were any individual on this list to test positive for the virus, they would be asked to consent to provide their details to the ISA. Should they refuse, they would be granted 24 hours to petition the court to prevent the transfer of their data to the ISA and inform any of their own contacts over the previous 14 days.
Concurring and Dissenting Opinions
Justice N. Sohlberg concurred with the majority opinion. He agreed that the authorization of the ISA to collect, process and use data of persons who had tested positive for the coronavirus and their close contacts falls within section 7(b)(6) of the ISA Law only if there is an imminent, severe danger to the state. While the coronavirus outbreak presented such a danger, as time has passed, the “danger is no longer what it was” and there must be primary legislation to continue this means of contact tracing. However, Justice Sohlberg added that “civic responsibility and solidarity” during the epidemic necessitates a “humane readiness to relinquish some measure of privacy in order to aid in the early detection of those infected.” [para. 4, Justice N. Sohlberg]
With regard to the Journalist Union’s petition, Justice Sohlberg dissented from the majority opinion. The judge opined that the exception to the principle of journalistic privilege should not be enshrined in primary legislation. Furthermore, Justice Sohlberg criticised the Court’s recommended approach concerning journalists, finding that allowing such an exception denies the right of those exposed to the coronavirus to be notified as soon as possible. In such cases, the “right to life outweighs a fear of a violation of freedom of the press.” [para. 5, Justice N. Sohlberg] The judge argued that any fear that an anonymous source may be identified was “very remote” as the data processing is automatic.
Justice H Melcer concurred with the majority opinion, finding that the ISA is authorized to receive, collect and process data to protect essential national security interests of the State. In support of his arguments he invoked the Precautionary Principle, that the authorities (the legislature or the executive) should be permitted to adopt measures intended to address a perceived significant threat of wide-spread, irreversible harm, even if it is only of low probability, and when there is no proven scientific certainty that the harm will be realized.[p. 6] The judge further recommended that the means be reexamined by the entire Knesset, while considering any potential alternatives. Concerning the issue of journalistic privilege, Justice Melcer concurred with the recommendation of the Chief Justice as an appropriate means to protect the freedom of the press.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression in its explicit recognition of the importance of the right to privacy and the freedom of the press in a democratic society. Furthermore, the decision prevents the Israeli government from authorizing the state’s internal security service to electronically contact trace coronavirus patients without statutory authorization.
However, the decision also adopts a broad definition of “national security” to determine whether the Israel Security Agency may be deployed in a time of domestic crisis. The court also failed to set out any binding legal obligations concerning the balance between privacy and public health when conducting contact tracing. The concurring opinion of Justice Sohlberg also recommends deprioritizing the right to privacy during the coronavirus epidemic.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Under 20(b) of the Basic Law of the state of Isreal, the rule established in Supreme Court is binding on every court except the Supreme Court which is not bound by its precedent.
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