Technosurveillance mission creep in Israel’s COVID-19 response

FILE PHOTO: Israeli Prime Minister Benjamin Netanyahu, wearing a protective mask due to the ongoing coronavirus disease (COVID-19) pandemic, chairs the weekly cabinet meeting in Jerusalem June 7, 2020. Menahem Kahana/Pool via REUTERS/File Photo

Last month, as he detailed the second phase of his country’s health crisis, Prime Minister Benjamin Netanyahu made an offhand comment, musing that Israelis, and especially children, might be equipped with devices to alert them if they got too close to others. Experts quickly dismissed the idea, and the prime minister’s office immediately clarified that Netanyahu only meant it as a voluntary gadget that might be developed for commercial use.

The comment was nonetheless of a piece with Israel’s approach toward the crisis, which has been marked by the redeployment of surveillance technology that had been previously dedicated to counterterrorism efforts toward tracking the pandemic. That shift in the country’s surveillance infrastructure toward outbreak-monitoring came amid a deep political crisis and raises questions about whether the government’s growing surveillance powers will outlast the pandemic.

Retooling surveillance toward COVID-19

With more than 18,000 confirmed cases, Israel has seen among the highest reported caseloads of countries in the Middle East, but has experienced a relatively low mortality rate compared globally. Israel probably owes this low death rate to its relatively young population, but also to its aggressive approach in combating the pandemic.

By mid-March, as the coronavirus spread through the country, the Israeli government invoked emergency powers to begin using cellphone tracking data to retrace the movements of those believed to be infected. The government used this data to order quarantines on individuals through contact tracing. The data could also allow the government to identify and shut down areas and neighborhoods with high infection rates, a move that is now under consideration. Data of this sort is not available to the Israeli civilian police, and the government turned to the Israel’s internal security agency, the Shin Bet (better known these days in Israel by the acronym Shabak) —to use its vast database of cellphone tracking data to map the outbreak.

The use of a surveillance system developed for counterterrorism purposes stirred opposition within Israel, not so much because of privacy concerns, but because it was conducted without proper parliamentary oversight and by a caretaker government. Amid the battle between Netanyahu’s right-wing and Benny Gantz’s center-left blocs to form a government, Netanyahu’s supporters had prevented the formation of the Knesset committee responsible for such oversight, albeit for different reasons. The swearing in of a Netanyahu-Gantz unity government ostensibly formed to combat the health crisis has ended the political crisis for now, but the surveillance system remains. After the Israeli Supreme Court on April 26 struck down that system because of the lack of oversight and the invocation of emergency powers without supporting legislation, the government and Knesset worked to adjust the legal requirements to allow for the Shin Bet to continue pandemic-related surveillance  but allow for more oversight by the relevant Knesset committee.

The Shin Bet developed the database, especially to monitor the Palestinian population in the West Bank and Gaza, and before it was deployed to track COVID-19, its existence had not been publicly reported. Israeli cellphone carriers are required by law to provide information to the security services. According to reports, the data allows authorities to see the location of a cellphone within a radius of dozens or hundreds of meters.

The Shin Bet plays a dual role in the Israeli security system. Inside Israel, it is analogous to the FBI, with responsibility for counterespionage, domestic counterterrorism, and safeguarding state security. It also holds Secret Service-like responsibility for protecting major public figures (the assassination of Yitzhak Rabin in 1995 was its most notorious failure) and Israeli diplomatic missions around the world. It differs from the FBI, however, in that it does not hold responsibility for regular domestic criminal investigations, as the Israeli police is itself a national body. In its internal role, the ISA’s best analogue might be the British MI5 (the Mossad being the equivalent to MI6).

But as the latest revelations also show, the Shin Bet has capabilities wielded in the United States by the NSA or in the United Kingdom by GCHQ. While Israel has a large and famous military unit (“8200”) performing signal intelligence outside Israel’s borders, the Shin Bet’s responsibility for the Palestinian territories leaves it straddling the line between domestic and foreign intelligence.

Therein lies much of the sensitivity in using the Shin Bet for what is essentially enhanced domestic policing. Democracies should not be in the habit of using intelligence services as police. A global pandemic represents an extraordinary crisis, but extreme experiences can be habit-forming, creating precedent that may be hard to break. This surveillance has raised related concerns: first, that such tracking violates the privacy of Israeli citizens, and second, that the granting of such emergency powers opens the door to future abuses of power.

Abuses of power pose an especially dangerous prospect during a state of emergency—whether an actual state of emergency such as the present pandemic or a legal “state of emergency” that grants the executive powers it would not otherwise have in a democracy. In Israel, such a legal state of emergency with some variation has been in place since the country’s first week of existence in May 1948.

The political machinations of the past year only intensify these fears. Three deadlocked national elections left Israel with a barely functioning legislature to practice oversight. Meanwhile, the Israeli right-wing has stepped up its long-running effort to limit the authority of the courts and what the right views as efforts by unelected judges to rule from the bench. With the government using the pandemic to expand its powers, this leaves few checks on that authority besides the goodwill of those who wield it.

Comparing Israel and the United States

Like the United States in the post-September 11 era, Israel is seeing surveillance tools developed for national-security priorities repurposed toward other uses. Israelis, though, are generally less opposed than Americans to such surveillance. Cultural norms, along with bureaucratic structures, mean surveillance faces less resistance in Israel.

Israel is small, especially compared to the United States. This is significant from a societal perspective: Within communities in Israel, everyone knows everyone’s grandmother, and she surveils them effectively. Israelis are used to the idea that someone is watching and voicing robust opinions on their choices and actions. Israel’s smallness is also a structural matter: Its government is not federal. So while the national leadership’s authority is not “total” on the local affairs of its citizenry, it is far greater than that of the federal government in the United States.

While both the United States and Israel have fought wars in recent decades, America’s conflicts have taken place far from its borders and the burden for waging them has been borne by a small slice of its society. Israelis, with their ongoing conflict with the Palestinians and the Lebanese Hezbollah, and the memory of wars against neighboring Arab states, have had a more intimate experience of conflict and political violence. While Americans’ sense of being under threat from terrorism varies widely over time, Israelis constantly perceive themselves as facing such threats. Their perpetual near-war experience has ingrained in Israelis a level of comfort with emergency law, akin to the American acceptance of extreme measures following September 2001. And, with most Jewish Israelis subject to conscription, a far greater portion of society feels a sense of ownership and agency on security matters. It tends to trust the government more than Americans would not to abuse these powers.

Further, Palestinians who are not Israeli citizens are nonetheless partly subject to its control, especially in matters of security. This creates space for the regular use of tools that in many settings apply to non-citizens—the tools of foreign espionage—by domestic bodies such as the Shin Bet.

Were Israeli democracy healthier, surveillance like that being conducted by the Shin Bet would pose a more limited set of questions. Privacy would remain a pressing issue, but there would be fewer concerns as to whether the government might seek to assert these powers beyond the end of the crisis. A functioning Knesset, capable of providing real oversight to these tools, would be able to assure the public that it was acting as a check on potential abuses. With Israeli democracy already weakened by political crisis, legislative dysfunction, and an ongoing campaign against the judicial system, however, these tools pose a more fundamental challenge to the long-term health of Israel’s democratic institutions.

Natan Sachs is a fellow in and director of the Center for Middle East Policy at the Brookings Institution.
Kevin Huggard is a senior research assistant at the Center for Middle East Policy at the Brookings Institution.