Case Number
HCJ 3809/08
Date Decided
5-28-2012
Decision Type
Original
Document Type
Full Opinion
Abstract
This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]
Petitions concerning the constitutionality of some of the arrangements prescribed in the scope of the Criminal Procedure Act (Powers of Enforcement – Communications Data), 5768-2007, which came into effect on June 27, 2008 (hereinafter referred to as “the Communications Data Act” or “the Act”) and enables the Israeli investigatory authorities to obtain communications data from all the communications companies – the various cellular or landline telephone companies and Internet providers. Obtaining those data does not include obtaining the content of the messages transmitted. The petitions essentially revolve around the right to privacy in the modern era. At the heart of the petitions is the balance between, on the one hand, concern regarding government’s over-intrusion into the individual’s life hand due to increasing technological abilities, and the importance of recognizing the advantages that technology provides as a tool to ensure security and public order on the other. The petitioners concentrated their constitutional arguments around the three main aspects of the Act: the ability to obtain a judicial order under section 3; the ability to obtain an administrative order without a court procedure under section 4; and the establishment of a database run by the investigatory authorities under sections 6 and 7.
The High Court of Justice (in an extended panel of seven Justices, and decision authored by then President D. Beinisch) dismissed the petitions on the following grounds –
There is no question, in view of the authorities established in the Act, that the Act does indeed unconstitutionally infringe on the right to privacy.
The Petitioners asserted that in addition to infringing on privacy, the act implicates legally recognized rights involved in the professional privileges including the right to representation, freedom of the press, free association, free expression, freedom of occupation, religious freedom and more. The concept of privilege in our legal system essentially extends professional privilege to the content of conversations between the professional, who may enjoy professional privilege (hereinafter referred to as “professional”), and the privileged person. It does not extend to the very existence of a connection with the professional. The purpose is to allow the privileged person a realm of free communication between them and the professional. The exception is the case of journalists (their case is different because the very identity of the person who contacts a journalist can constitute part of journalistic privilege in order not to expose the journalist’s source despite the protection available to such source). The Petitioners were unable to demonstrate that the Communications Data Act per se, which does not permit the transmission of message content, infringes on the various different professional privileges established by legislation and the case law. Even were there an infringement, it is marginal. It does not reach the core of the right that benefits from extensive protection. Consequently, nor was it found that it was possible to show infringements to other rights that privilege is designed to protect. Nevertheless, for the purposes of the discussion, the Court assumed the ability to obtain professionals’ communications data does constitute an indirect infringement of the right of privacy.
Of course mere infringement of the right of privacy – and its indirect outcomes – does not sufficiently warrant striking down the Act. The Act’s infringement of the constitutional right must meet the requirements in the limitations clause of Basic Law: Human Dignity and Liberty. Should it appear that the infringement does meet those requirements, there will be no reason to find the Act unconstitutional.
Since the petitioners also agree that the purpose of the Act – to provide the Police and the other enforcement authorities with effective tools to fight crime in the developing modern world, to facilitate the prosecution of offenders, and to enable quick responses to urgent situations (for example when human life is at stake or offenders who have already committed offences need to be traced immediately) – is worthy, and since it is clear that the Law is not inconsistent with the values of the State of Israel, the discussion focused on analyzing the proportionality of sections in question. Based on a narrow interpretation of these sections, the Court concluded that the Act is proportional, as it properly balances the purposes of the Act and any infringement on the right of privacy.
Under section 3 an investigatory authority, as defined in the Act, may request a magistrates’ court’s permission to obtain communications data. The Court held that although the language of sections 3(a)(2) and (3) do prima facie permit investigatory authorities to request a court order to obtain communications data in order to achieve general objectives, the investigatory authority is not actually authorized to do so.
The proper constitutional interpretation of sections 3(a)(2) and 3(a)(3) of the Communications Data Act, which is consistent with the language and purposes of the Act, is that the investigatory authorities may ask a court for an order according to the Act merely for the purpose of detecting concrete offences or offenders (in order to detect a particular offender or investigate or prevent a particular offence that is anticipated or being performed), and not for the purpose of general intelligence activity related to any offences or offenders. Given this interpretation, the arrangement prescribed in section 3 meets all three of the proportionality criteria. This interpretation is consistent with the State’s position as well as the prevailing constitutional concepts in legal systems similar to ours.
The Court dismissed the Petitioners’ request to apply the Act in its entirety, particularly section 3 – which sweepingly applies to misdemeanours – to felonies. Moreover, the Court did not see fit to narrowly interpret section 3 to provide for court orders only where misdemeanours of particular level of seriousness or where communications data is an inherent component of the crime (for example computer hacking) are involved. Because the mechanisms existing in the Act – and essentially the judicial review of the application – can, certainly at present, adequately address to the Petitioners’ concern about the arrangement’s improper use.
Section 4 authorizes the Police or the Military Police CID (but not the other investigatory authorities) to urgently obtain communications data regarding felonies only through an administrative – rather than judicial – order, effective for 24 hours. Section 4 lacks is silent on limits that are included in section 3, such as discretion but primarily the limitation on transferring a professional’s communications data (according to these sections, where there is authorization of a competent officer, who believes it is urgently necessary to do so, it is prima facie possible to transfer a professional’s communications data without restriction) (hereinafter referred to as “the administrative arrangement”). The Court held that, ab initio, given the specific purpose of section 4 and the limited potential of infringing the privilege of most professionals due to obtaining the data permitted by the Act, the absence of specific reference in this section to the context of professionals does not render in disproportional, a fortiori in view of the proper interpretation of the section (as detailed below).
In terms of the exercising the authorities under sections 3 and 4 of the Act, the provisions do not provide for an order in circumstances where the purpose of the order is general intelligence activity for the detection of offences.
The Court further held that exercising the authority in section 4 of the Act should be interpreted to sparingly permit obtaining communications data, in extreme cases, for the purpose of dealing with offences that require it and only in urgent cases where a court order clearly cannot be obtained according to the procedure prescribed in section 3 due to circumstances such as saving of life or other serious circumstances. Certain considerations, including that the subscriber is a professional, the extent of his involvement in the offence, the type of data sought, the degree of urgency, the severity of the offence and other considerations must always be taken into account (that is that in exercising section 4, the narrow arrangements prescribed in section 3 can help to identify relevant factors for exercising the discretion).
Nevertheless, different treatment of journalistic privilege is appropriate. The State therefore acted properly when it prescribed that a procedure involving journalists would trigger special conditions. Restrictions on the use of orders, as detailed in section 4, are required by the purpose of the Act and the balance necessary for achieving this purpose. The Court accordingly held that when the subscriber is a journalist who is neither a suspected nor the victim of the offence, order to obtain communications data of the traffic type under section 4 will not be granted.
As for the sections 6 and 7 which regulate the database – the Court did not find it appropriate to intervene in these sections’ establishment of a database to be kept by the investigatory authorities, so as to limit the ability to keep in the database identifying information of anyone whose telephone number is unlisted. Having held that the Act should not be interpreted to permit the database to be used for general Police intelligence or infrastructure activity and assuming this will in fact be done, there is no justification to limit collecting certain numbers in the database in a way that would enable people who choose to conceal their information from the eyes of law enforcement authorities.
In view of all this the Court held that the arrangements prescribed in the Act, including the judicial arrangement, the administrative arrangement and the keeping of unlisted numbers in the database, indeed meet the requirements of the limitations clause and do not constitutionally justify intervention. Additionally, the Court found that review of the Act as a whole, together with all the arrangements and internal balances it includes, led to the conclusion that intervention was not justified.
Nevertheless, the Court emphasised that the enforcement authorities are tasked with considerable work in the proper exercise of their powers, and must exercise strict caution and care while applying the Act solely to the necessary extent and degree, bearing in mind it may infringe on certain rights. The Knesset and the Attorney General, who are legally responsible to regularly review the extent of the Act’s application, also shoulder a great responsibility.
In conclusion, the Court dismissed the Israel Bar’s Petition that the Act should prescribe that obtaining communications data in violation of the Act cannot serve as admissible evidence in legal proceedings. The Petition to mandate judicial review of administrative orders under section 4 before any use of evidence obtained through the administrative order, was also rejected.
Justice E. Arbel: Joins the Court’s opinion and adds two observations. According to her, section 4(b) of the Act, which limits granting a permit to a period of no more than 24 hours, should be interpreted as prohibiting a competent officer from renewing the permit at the end of that period or some time thereafter. It should also be interpreted to require the competent officer to secure a court order under section 3 of the Act, as is necessary after 24 hours. That interpretation prevents infringement of the right of privacy beyond the necessary (Deputy President E. Rivlin concurred with this observation). Moreover, according to Justice Arbel, there should also be judicial review over the implementation of section 4 by ex post facto approval of the permit. Justice Arbel reaches this conclusion by analogizing the provisions of section 5(d) of the Secret Monitoring Act with regard to the retroactive judicial review of permits granted in urgent cases without a permit from the court.
Justice H. Melcer differs from the President’s opinion on two points: (a) the protection the Act affords anyone in the context of professional privilege applies by law, including case law; (b) the proper constitutional interpretation of section 4 of the Act and the limits of its use. His view on both points leads to a constitutional-interpretive conclusion that a competent officer, as defined by section 1 of the Act, may not act according to section 4 of the Act when professional privilege prima facie applies. The only way to try to obtain communications data in such cases necessitates a court’s approval according to section 3 of the Act (and in particular section 3(b)), subject always to the provisions of law (including case law).
In light of all this, the Petitions were unanimously dismissed. Regarding the interpretation of sections 3, 6 and 7 of the Act, the Court decided according to President (Ret.) D. Beinisch’s opinion with all other Justices concurring. Regarding the interpretation of section 4 of the Act, the majority decided joined President (Ret.) D. Beinisch’s opinion, that the power prescribed in that section can also be exercised when a “professional’s” communications data are involved, subject always to the limitations and reservations detailed in the opinion. Justice H. Melcer, in his dissent, believed that the power prescribed in section 4 cannot be exercised in order to obtain a permit under the Act in the case of a “professional”.
Keywords
Communications, Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- Right to Privacy, Criminal Law -- Criminal Procedure
Recommended Citation
Beinisch, Dorit; Grunis, Asher; Naor, Miriam; Hayut, Esther; Melcer, Hanan; Rivlin, Eliezer; and Arbel, Edna, "Association for Civil Rights in Israel v. Israel Police" (2012). Translated Opinions. 57.
https://larc.cardozo.yu.edu/iscp-opinions/57
