Using Counterterrorism for Fighting the Pandemic: Israel During the Days of COVID-19

Hello Marina, according to an epidemiological investigation, you were near a coronavirus carrier […] You must go into isolation […] in order to protect your relatives and the public. Regards, Public Health Services. ^[1]

Since mid-March this year, the Israeli Security Agency (ISA) has been collecting geolocation data on individuals who have tested positive for COVID-19 and those who have been in close contact with them. The ISA forwards the details to the Ministry of Health, which issues 14-days isolation orders to those who have been exposed to a virus carrier, through text messages such as the one quoted above. The police are then provided with details of the isolation orders so that it can enforce them through fines and charges. The Ministry of Health reports that by the end of May 81,383 isolation orders have been issued based on the ISA’s contact tracing findings.

The ISA is Israel’s internal secret service. Its main responsibility is protecting state security against terrorism, subversion and espionage. Yet, on 17 March 2020, Israel’s interim Government issued an emergency order that harnesses the ISA’s surveillance technology for what seems to be a pure public health purpose – stopping the spread of COVID-19. The emergency order exposed a practice that has not been formally acknowledged so far, and that is the ISA’s continuous collection of metadata on individuals, including identity, geolocation, calls and web history. This practice is not entirely surprising, as the 2002 Security Agency Law permits the collection of data from telephone communication ‘license holders’. Nevertheless, the disclosure of the ISA’s extensive tracing technology reveals the extent of the data gathered by the ISA before the outbreak of the pandemic. However, unlike Edward Snowden’s exposure, the disclosure of the Israeli data trove, and the exceptional use of it for public health purposes, has not caused a significant public outcry in Israel.

Nevertheless, civil society organisations and the Joint List political party petitioned to the Supreme Court against the use of the ISA’s surveillance measures for fighting the virus. The Court held that the law permits the ISA to act against ‘imminent dangers’ to the public that may exceed terrorism. However, it also ruled that the passage of time since the pandemic broke out, and the invasive nature of ISA’s surveillance, demanded that if the Government seeks to continue using the ISA’s services during the current crisis, it must adopt primary legislation to this effect that will undergo Parliamentary scrutiny.

While the newly appointed Government presented a new bill of law on the matter, civil society organisations and the State Privacy Protection Authority argued that no other democracy used its secret services for fighting the virus and that Israel should pursue less intrusive alternatives, such as consensual monitoring through civilian applications. The ISA’s operation, it was argued, traces non-suspect individuals and violates their right to privacy with no adequate transparency over the scope and nature of the information gathered, given the inherent confidentiality of the ISA’s work and the fact that parliamentary oversight on its operation is classified.

Surprisingly, the Government recently announced that it will freeze the new bill. According to media reports, this decision was based on opposition from the ISA Director himself who asked to distance the organisation from a ‘controversial civilian issue’ and expressed the concern that details about the ISA’s tracking technologies could be exposed. Oddly enough, and regardless of the ISA’s motivation, it was its opposition that ended up halting the expansion of its own powers and the wide-ranging infringement of the right to privacy.

With 19,388 confirmed cases of the virus and 302 deaths reported on 16 June 2020, Israel is considered one of the countries that managed to evade the serious impact of the virus. Indeed, as Lazarus noted, states have a positive obligation for actively protecting the public from the spread of the virus. Yet, the experience of the post 9/11 era attests to the risks of exceptional measures becoming normalised, and thus it is crucial as ever that states operate their powers under continuing parliamentary, judicial and scientific scrutiny.

Israel introduced its measures against the virus primarily through emergency orders that bypass Parliament. 68 emergency orders have been issued since the crisis began. This is an unprecedented number, even when compared with periods of war during Israel’s 72 years of existence. The inflation of emergency orders and the use of the ISA during the pandemic cannot be divorced from Israel’s permanent state of emergency, since its establishment in 1948, and its policy in the occupied territories. Since 1967, Israel has used emergency powers and extensive surveillance practices in the occupied territories, alongside further measures such as restrictions on movement, administrative detention and interrogation methods that reportedly amounted to torture. The ISA plays a central role in pursuing Israel’s policy in the occupied territories and maintaining state security in the reality of an ongoing conflict.

The dominance of the ISA in keeping state security in ‘regular’ times, mostly targeting Palestinians, may explain why Israel turned so quickly to use its services in a public health emergency against the whole population. While the Court expressed the concern that the ISA’s surveillance powers will be used outside of the pandemic context, it may very well be that its own decision to justify the use of the ISA during the current crisis opened the door to normalising exceptional counterterrorism measures in future contexts.

In 1968, scientist and philosopher Yeshayahu Leibowitz (1968: 225-226) envisioned the expansion of Israel’s security services, in these famous words:

A state ruling a hostile population of 1.5 to 2 million foreigners would necessarily become a secret-police state, with all that this implies for education, free speech, and democratic institutions.

Emergency powers and classified measures enshrined in orders and performed by secret agencies have become permanent in the reality of Israel and have been a convenient recourse to fight a public health crisis. This extensive use of extreme measures reflects how emergency gives rise to powers that take priority over the protection of basic rights. Decades of developing the ISA’s operation have arguably generated public reliance and trust that allow the expansion of its powers to go largely uninterrupted. Under these circumstances, it might be less surprising that the reported reasoning for withdrawing the ISA’s operation on COVID-19 was not necessarily the protection of basic rights but rather the protection of the ISA itself.