Association for Civil Rights in Israel petitions Supreme Court to prohibit use of Pegasus spyware
Association for Civil Rights in Israel petitions Supreme Court to prohibit use of Pegasus spyware
Following a Calcalist investigation into the police's use of spyware without supervision, a petition has been made asking for a continued injunction against its use
The Association for Civil Rights in Israel and the Privacy Clinic at Tel Aviv University petitioned the Supreme Court on Tuesday to require the state to gain legal authorization to use spyware programs such as NSO's Pegasus as well as monitoring and control mechanisms. The use of such spyware has been frozen since January 2022 following a Calcalist investigation that exposed the illegal and unregulated use of these tools by the police. The petition is also directed against the use of similar tools by the Shin Bet, the Israel Security Agency.
The petitioners requested that the Supreme Court issue an interim order asserting that the state can neither seek a court order nor permission from the minister for the use of spyware for wiretapping purposes under the existing Wiretapping Law.
"The need for new surveillance and tracking technologies by the police and the Shin Bet is clear," stated the petition submitted by the Association for Civil Rights and the Privacy Clinic. "But the risk of these new tracking technologies is significant. Concern about the abuse of surveillance systems for political purposes is no longer a mere fear. Evidence of the harm caused by surveillance systems, and spyware in particular, is accumulating worldwide.
"The debate on whether law enforcement agencies should be allowed to use spyware is a moral, ideological, political, and technological discussion. A nuanced conversation must take place in the Knesset after a long and public discussion. There is no room for introducing these tools in the dark, based on a broad interpretation of outdated laws.
"Private phones and computers are not just a gateway to our world," the petition began. "For many, they are our world: our activities, our preferences, our thoughts. Through the use of spyware technology covertly installed on our devices, a wealth of information beyond communication with others can be exposed: it can expose us, even our innermost thoughts."
The respondents, the petition stated, "seek to place the use of spyware within the realm of regular wiretapping, as a technical tool only. However, the use of spyware goes far beyond regular wiretapping.
“Authorization that allows for the infringement on fundamental rights such as the right to privacy, freedom of expression, and freedom in general must be explicit and clear - such authorization does not exist. The respondents are relying on 'ancillary powers' under the Wiretapping Law, creatively interpreting it in order to transfer that power from the physical space to the digital. Even in cases where a legitimate purpose exists, we must remember the constitutional principle: necessity does not create authority."
The petitioners note that following Calcalist’s investigation, a commission led by former Deputy Attorney-General Amit Merari was established to examine the use of spyware and published their findings in August 2022. The report stated that the use of these tools was frozen at the end of January 2022 following the investigation. Since then, according to Police Commissioner Kobi Shabtai's statements in the Knesset and the media, the use of spyware has been suspended under the order of Attorney General Gali Baharav-Miara, until the recommendations of the Merari report are implemented.
The report noted that a complete technological upgrade of spyware to perform covert searches by extracting mobile data is required. It was also recommended to pass legislation but the government has not done so.
"The Merari Report points to serious structural failures in police activities and concludes that the police have overstepped their authority according to the Wiretapping Law," the petition stated. "The report highlights many failures in the implementation of the technology and its supervision. The Merari team believes that a comprehensive legislative amendment to the Wiretapping Law is urgently needed to adapt it to today's technological reality, but it avoids mandating such legislation.
"The question of authority was not the only obstacle," the petition writers specify. "The Merari team observed that police use of spyware was disproportionate: they went beyond what the law allowed, certain technological features of the spyware were not reported, there were insufficient limits on the use of spyware, and there was not adequate supervision. However, instead of instructing the police and the responsible minister to promote comprehensive legislation, they recommended that regulations over the use of spyware be determined by the police, under the supervision of Ministry of Justice officials. It can be inferred that once the police completes its internal processes, the use of spyware can be resumed according to the Merari report."
