PRIVACY

Digital Tracing and COVID-19 -

The Israeli Case

Israel has been the only western democracy which used secret service tools to fight the Coronavirus. The challenges presented by the pandemic put in balance human rights as privacy, freedom and health. Many countries find digital tracing a method to contain the propagation of the virus. However, this approach has confronted human rights.

By Alice Bryk Silveira

April 11, 2021

Introduction

During the current COVID-19 pandemic the governments have been using tools to protect public health and contain the spread of the coronavirus. However, certain human rights have been restricted by those public health measures which brings the discussion of the legality of such human rights restrictions. For instance, some countries have been using Digital Tracing as a tool to contain the growth and proliferation of the virus. The Digital Tracing mainly consists of tapping into cell phone location data to track infection spread and then notify people who may have been exposed. This method puts in balance the right to privacy and freedom.

Explaining Digital Tracing 

First, it is important to note that there are two types of technologies used to track data. The first one is called centralized in which the information can be stored by the government and the processing can be done by civilian government agencies, for instance healthcare authorities or by security agencies that enjoy direct access to the cellular infrastructure. The second type is the digital tracing established on made-to-order apps which can be voluntary or mandatory.  This second approach sends the information straight to the other users of the app, in which case the data is decoded and processed on each user’s cellular device. This decentralized method has been used in countries such as Italy, Germany, Switzerland, and few states of the USA .

The Israeli Case

In March 2020, the Israeli government approved a non-voluntary emergent mass surveillance program allowing the location tracking of citizens as part of a national effort to slow the spread of COVID19. The digital contact tracing has been headed by the Israeli Security Agency (ISA), known by Shin Bet, which is responsible to fight against terrorism and espionage. The mobile-phone location data helped to identify people who had crossed paths with patients who had been positive for COVID19- and then they were put into mandatory quarantine.

In response to the implementation of this mass-surveillance program for contact tracing, human rights organizations submitted a petition to the Israeli High Court of Justice arguing a violation of basic human rights, as human dignity and privacy. In April, the High Court of Justice ruled that Shin Bet security service’s cell phone tracking of confirmed coronavirus carriers could not continue to operate due to the lack of legislation.

However, as a result of the increase of COVID-19 infections, in July 2020, the Israeli Parliament (Knesset) passed a temporary law authorizing the use of the Shin Bet to track civilians for six months. Once again, in response human rights organizations submitted a petition that the temporary order was unconstitutional, once authorized the Shin Bet to use extreme mass surveillance tools which have been used for national security for civilian matters. 

Recently, the High Court of Justice restricted the activity of Shin Bet which after March 14th can only be used for the people who don’t cooperate with epidemiological investigations, thus  the tracing system will be used as a “complementary tool” for individual cases. It is crucial to highlight that the method used by Shin Bet has been proved not to be very efficient and it has been reported several cases of people who have been sent wrongfully to quarantine.

Closing remarks

As we can see, the Israeli case brings to discussion the limits of public health tools and human rights in a democracy. In the case presented above, it is possible to affirm that the means used by the Israeli government are disproportionate. Countries have been using an “emergency state law” to justify abuses to democracy. It is undeniable that the current pandemic brought many challenges to the countries and governments all around the world. However, we can never forget to ensure that the human rights as privacy and freedom will be respected along with the right to health.

Therefore, it is crucial to take into account the principles for maintaining privacy and civil liberties with the cellphone tracking, as the principle that the data access should be permitted to as few people as possible; the limitation of time of the program; the supervision based on transparency; the knowledge of the public about what data are collected and how those data will be used, stored and shared; the principle that civilian operators (telecommunication and software industries) should preferably operate the mass contact-tracing systems; the encouragement of  voluntary participation and most importantly the principle of proportionality to determine if the limitations on the human rights are truly necessary. Thus, it is an  accomplishment that even after a long process Israel recognized the value of the population's human rights and limited the use of controversial measures as contact tracing.

Alice Bryk Silveira is a Brazilian lawyer, member of the Brazilian Bar Association and she recently completed her LLM in International Law & Human Rights at Tel Aviv University. She holds a Bachelor's Degree in Law from Pontifícia Católica do Rio Grande do Sul (PUCRS). During Law School, she has been an intern at the Federal Public Defender’s Office of Brazil and the State Public Defender’s Office. Also, she has been a volunteer at ACRI - The Association for Civil Rights in Israel doing legal research, where she has done research about the privacy impacts of Facial Recognition Technology. Her research interests are the intersection between human rights and technology. She is fluent in Portuguese and English and can communicate in in French and Spanish.