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Israel: Emergency Regulations Authorize Digital Surveillance of Coronavirus Patients and Persons Subjected to Home Isolation

(Mar. 18, 2020) On March 15 and 17, 2020, Israel’s transitional government headed by Prime Minister Binyamin Netanyahu approved two separate emergency regulations that allow, among other things, the use of digital surveillance by the General Security Service (GSS) and provide expanded search authority to the Israel Police to combat the spread of the coronavirus. The GSS is responsible for “safeguarding state security … and promoting other vital state interests for the national security of the state, all as prescribed by the government and subject to law.” (GSS Law, 5762-2002, as amended, § 2.)

Legal Basis for Issue of Emergency Regulations

Section 39 of Basic Law: the Government authorizes the government, during a state of emergency, to adopt emergency regulations “for the defense of the State, public security and the maintenance of supplies and essential services.” (§ 39(a).) Accordingly, the prime minister may “make such regulations or empower a Minister to make them” if he determines that “it is impossible to convene the Knesset [Israel’s parliament], given the existence of an immediate and critical need to make emergency regulations” (§ 39(b).) Emergency regulations may be in effect for a period of three months unless extended by law or revoked by legislation or a decision of a majority of the members of Knesset, or if the state of emergency has ceased to exist, under conditions specified in the Basic Law. (§ 39(f-h).)

Special Authority Provided to the Under the Emergency Regulations

On March 17, 2020, the government published the Emergency Regulations (Authorization of the General Security Service to Assist the National Effort to Reduce the Spread of the Novel Coronavirus), 5780-2020 (Regulations [Regs.]).

The GSS regulations define a patient as “one with a positive laboratory finding for nCoV, or whom a physician has determined in accordance with MOH [Ministry of Health] guidelines is sick from the disease or … suspected of having it even if such lab findings have not yet been received.” (Regs. § 1.)

The regulations empower the GSS “[t]o assist the Ministry of Health in conducting an epidemiological investigation to reduce and prevent the spread of the novel coronavirus.” (§ 2.) To achieve this goal, the regulations authorize GSS authorities “to receive, collect and process technological information in order to perform a test pertaining to the 14-day period before a patient’s diagnosis, which is intended to identify the patient’s location and [trace the patient’s] movements, and identify people who came into close contact with the patient.” (§ 2.)

The GSS may transfer to the MOH “technological information,” excluding the contents of conversations as defined in the Secret Monitoring Law, 5739-1979 (Sefer HaHukim [SH, Book of Laws] (official gazette), No. 938, p. 118, as amended).

The emergency regulations are in effect for a period of 14 days (§ 11.) Upon their expiration the MOH must erase the information produced but is allowed to keep the information for another 60 days for an internal review of MOH activities. (§ 7(b).) The regulations prohibit the use of information produced for any other purpose, and include a penalty of up to three years in prison for the use of information for another purpose. (§ 3.)

Special Police Surveillance Authority

On March 15, 2020, the prime minister issued the Emergency Regulations Enforcement of Public Health Ordinance (the Novel Coronavirus) Home Isolation and Various Provisions (Temporary Provisions) 5780-2020 (CRs) with the objective of implementing isolation requirements. To accomplish this goal the CRs authorize police officers, among others, to request that persons identify themselves and provide any necessary documentation and information, including home address and locations visited. (§ 8.)

Parliamentary Oversight Concerns

Objecting to the manner in which the regulations had been adopted, Kahol Lavan (Blue and White) party head and Netanhahu political rival Benny Ganz, who was assigned the task of forming of a coalition government by Israel’s president on March 16, 2020, demanded that the newly sworn-in Knesset appoint a foreign affairs and defense committee, a finance committee, and a special committee on the coronavirus issue to oversee efforts to prevent and manage the spread of the coronavirus and approve any regulations required. Ganz stated that “[t]his is the case in democracy. We will not allow the state to run without a functioning Knesset during an emergency.”