High Court of Justice upholds “Big Brother Law” but limits authorities’ powers to invade privacy under this law.
Today (28 May 2012) the High Court of Justice rejected a petition filed by the Association for Civil Rights in Israel (ACRI) (HCJ 3809/08) seeking judicial review of the Communications Data Law. However, the court gave a narrow interpretation of the law, significantly limiting the police’s authority to use personal information gathered from telecommunications information.
The Enforcement Authorities – Communications Data Law – 2007 (nicknamed the “Big Brother Law”) enables the police and other investigative authorities in Israel to receive personal information on any person from cellular phone companies and internet providers – information on the person’s whereabouts, names of persons or organizations called or emailed, websites visited, and more. The law permits authorities to use personal communication data as a means of “crime prevention and detection,” paving the way for expansive interpretations that include the collection of information for general police intelligence rather than specific criminal investigation. It provides for two avenues for collection of data: judicial, which requires an order signed by a judge; and administrative, in which the police can authorize the collection under exigent circumstances.
During subsequent Knesset discussions regarding this matter, it became apparent that law enforcement authorities had not met their reporting obligations and had exceeded their authority under the law. One report indicated that the police had collected data without a court order under the law’s administrative exigency provisions in approximately half of all instances.
ACRI was represented by attorney Dori Spivak, formerly of the Tel Aviv University Law Faculty’s Human Rights Program (Mr. Spivak was appointed as a judge in the Tel Aviv Labor Court in 2011). This petition, filed in 2008, sought to restrict the application of the law, and argued that it should to be limited to specific major offenses and absolutely prohibit the collection of information from professionals with confidentiality privileges (such as journalists and attorneys) without a court order. The Israel Bar Association filed its own petition against the law, and the Council of Journalism joined the case as an amicus curiae.
The court’s ruling, delivered by an expanded seven justice panel and written by Supreme Court President (ret.) Dorit Beinisch, limited the circumstances under which personal communications data can be obtained. By the court’s instructions, personal communications data may only be collected for the investigation of a concrete crime, and will not allowed for the collection of intelligence information or for general crime prevention. The court also made it clear that the administrative avenue should only be used in extreme cases where there is no way to get a court order.
In his dissenting opinion, Justice Meltzer stated that the administrative process should be even more limited, and prevent the police commissioner from ever issuing an order for information on a privileged professional such as an attorney or a journalist. Though it indicated a desire for the authorities to take special care in such cases, the Court declined to include this provision in the majority ruling.
According to Dan Yakir, ACRI’s Chief Legal Counsel, “over the past few years the police have demonstrated again and again that they will exceed the expansive authority granted to them by this law. It is crucial to set clear limits to the police’s authority. We hope that the limiting interpretation decreed by the court will be applied in a way that minimizes the violation of individual privacy and limits such violations to cases of absolute necessity.”
The High Court ruling (in Hebrew)
