Israel’s rules governing privacy and related laws have experienced a dramatic past few weeks. These developments started with an Israeli Supreme Court ruling in favor of relaxed rules governing cellphone search warrants and ended with an expose revealing that Israeli police have been using NSO Group spyware allegedly without warrants or explicit statutory authorization.
The Orich Judgment
On Aug. 29, 2019, a van drove by the residence of Shlomo Filber, former director general of the Israeli communications ministry and a state witness in the corruption trial proceeding against former Prime Minister Benjamin Netanyahu. The van, equipped with loudspeakers, blared accusations that Filber was lying in the investigations as part of an effort to incriminate his former boss, Netanyahu.
Filber’s complaints of harassment sparked a police investigation, and four of Netanyahu’s advisers were brought in for questioning. During their interrogations, the officers asked for the suspects’ consent to search their cellphones but did not inform them that they had the right to refuse without it being held against them. The police subsequently applied for search warrants to access the cellphones.
This case joined another cellphone search case and eventually was brought before an expanded panel of the Supreme Court of Israel in the matter of Orich and others v. Israel. The Jan. 11 Orich ruling focused on the proper application of Section 23A of the Israeli Criminal Procedure Ordinance (Arrest and Search), 5729-1969. Under Section 23A, computer searches are to be undertaken by a skilled police officer and subject to a judicial warrant that outlines the purposes and the conditions of the search to ensure an individual’s privacy will not be unduly infringed upon. While computer searches under Section 23A also cover cellphone searches, the section does not set out the procedural rules governing the application for a computer or a cellphone search warrant, nor does it set out any statutory exclusionary rule.
The Supreme Court in Orich decided on three issues: who should participate in judicial proceedings in cellphone search warrants applications, whether those targeted by such warrants can file an appeal during the investigation to revoke the warrants, and whether evidence obtained by illegal cellphone searches is admissible in trial.
On the first issue, the court ruled in favor of a more limited judicial proceeding given the interests of holding efficient investigations. Applications for cellphone search warrants typically are held ex parte, as adversary proceedings may cause delays and provide suspects an opportunity to tamper with evidence. To mitigate concerns of judicial rubber stamping where no adversarial arguments are presented, the courts specified the procedure for granting cellphone search warrant applications, noting that the interest of privacy should be taken into consideration.
Regarding the second issue, the court accepted judicial efficacy considerations when determining that cellphone search warrants cannot be subject to a direct appeal. Any misgivings regarding the scope of approved warrants will be addressed in the substantive criminal proceedings, where the trial court can decide whether or not to admit evidence procured through the search warrants.
Lastly, the court determined that the admissibility of evidence obtained pursuant to an illegal cellphone search warrant will also be deferred to the substantive criminal proceedings and be subject to the existing Israeli judicial exclusionary rule. The rule requires the defendant to establish that the evidence was obtained unlawfully and that its admission will unduly harm the defendant’s right to a fair trial. This rule grants the court more discretion compared to other exclusionary rules, such as the one available under Israel’s Wiretap Law, which states that unlawfully obtained wiretap evidence is inadmissible by default. Notably, Israeli case law has so far rejected the U.S. criminal law fruit of the poisonous tree doctrine. That doctrine is highly relevant in the context of illegal cellphone searches, in which investigative authorities may undertake a fishing expedition prior to a warrant application.
The New NSO scandal
While the court in Orich granted the Israeli police some judicial leeway, recent developments may have presented new challenges for the ruling. Calcalist, a leading Israeli economic newspaper, revealed in its series of investigative reports that Israeli police have been using the NSO Group’s cyber surveillance tools in dubious circumstances without judicial authorization.
According to the report, the SIGINT unit of the Israeli police has been using NSO’s surveillance software for clandestine remote searches of suspects’ cellphones, without any judicial warrant. The investigation further claims that police have used these tools to surveil the leaders of the 2020 protests against Netanyahu. A follow-up report described how police intelligence used NSO tools to gather and leverage intimate personal data about individuals—police targeted one social activist by discovering he installed a LGBTQ matching application on his phone while he was married to a woman. At the moment, it is unclear whether the police used NSO tools solely as a wiretapping tool, listening in to VoIP-based communications or intercepting electronic correspondence, which falls under the purview of the Wiretap Law that requires a warrant; or whether the NSO tools were used for acquisition of other data stored on the cellphone. While overt cellphone searches, where the police physically seize the device and copy its contents, may be authorized under the aforementioned Section 23A of the Criminal Procedure Ordinance (Arrest and Search), the statutory basis for clandestine remote searches by equipment interference is unclear.
If the claims in the report are true, it appears that the police engaged in unlawful warrantless cellphone searches and wiretapping, and in spying activities that cannot be authorized under any existing Israeli law. The police, however, deny the press report and claim that their activities are in compliance with the law and subject to judicial warrants. At this point, it is unclear whether judges signing wiretap warrants were fully aware of the specific methods by which the warrants were eventually exercised.
These revelations about the SIGINT practices Israeli police have used shed new light on the Orich ruling and raise doubt about the degree of trust and the spielraum the court afforded to the investigating units in conducting cellphone searches. The legal uncertainty surrounding the use of spyware can be attributed to the outdated legal framework governing SIGINT collection in Israel and highlights the urgent need for reform in the laws regulating online surveillance by public authorities. Such reform should align domestic legislation with common international standards, including specific regulation of spyware or open-source collection, the introduction of stringent exclusionary rules and data subject notification rights, as well as robust oversight mechanisms.
The use of ISA (Shin Bet) cellphone location tracking for coronavirus-related purposes has already highlighted serious problems in the high-level decision-making process of the Israeli SIGINT oversight ecosystem and the general weakness of the legal infrastructure. Recent revelations of police use of spyware illuminate the existing on-the-ground oversight issues—whether judicial warrants were given without sufficient inquiry into surveillance measures and techniques, or whether these intrusive means were employed with no judicial review at all. The oversight gap created by the absence of an independent expert SIGINT oversight body, with ex ante authorization powers as well as ex post oversight and review authority, is apparent.
It is too early to assess whether these developments will eventually usher in overall reform of the Israeli online surveillance law. Politicians from across the political spectrum have already proposed establishing a commission of inquiry. Establishment of such a commission could galvanize change, but expectations should be limited given recent history. The public discourse following the 2020 Israeli “Snowden moment,” when the ISA’s communications metadata collection program (the “Tool”) was revealed, focused on preventing the use of this program for coronavirus location tracking rather than questioning its existence or its very lax legal framework. Similarly, the public discourse surrounding police use of NSO tools has so far focused on criticizing the conduct of the Israeli police and the Ministry of Justice, while not framing the affair as another case in which NSO capabilities were misused by authorities or sparking a more informed debate as to the regulation of privately developed spyware.