Case Number
HCJ 2109/20
Date Decided
4-26-2020
Decision Type
Original
Document Type
Full Opinion
Abstract
The petitions in this case challenged the Government’s decision of March 31, 2020 to authorize the Israel Security Agency (hereinafter: ISA), by virtue of sec. 7(b)(6) of the Israel Security Agency Law, 5762-2002 (hereinafter the ISA Law), to collect, process and use “technological information” regarding persons who had tested positive for the novel coronavirus (hereinafter: the virus), as well as persons who came into close contact with them (hereinafter: the Enabling Decision). The Journalists Union further asked that the journalists in the State of Israel be exempted from the application of the Enabling Decision, due to the fear of infringement of journalistic privilege and the exposure of sources.
In granting the petitions, the Court (per President E. Hayut, Deputy President H. Melcer and Justice N. Sohlberg concurring) held that the Enabling Decision passed constitutional review under the exigent circumstances at the time it was made, but that further recourse to the ISA for the purpose of contact tracing would require primary legislation in the form of a temporary order that would meet the requirements of the Limitations Clause of Basic Law: Human Dignity and Liberty.
The Court further held (per President E. Hayut, Deputy President H. Melcer concurring, Justice N. Sohlberg dissenting) that due to the fundamental importance of freedom of the press, ISA contact tracing of journalists who tested positive for the virus would require consent, and in the absence of consent, a journalist would undergo an individual epidemiological investigation, and would be asked to inform any sources with whom he was in contact over the 14 days prior to his diagnosis.
President E. Hayut: The Enabling Decision establishes a primary arrangement in substance. It infringes such basic as the right to privacy, and it extends the involvement of a preventive security service to matters that are civilian in nature. Therefore, the question is whether sec. 7(b)(6) of the ISA Law sufficed to permit expanding the authorities of the ISA as established in Government Decision No. 4950.
Urgency can have implications for the level of explicitness sufficient for delegating authority to the executive to establish primary arrangements. Inasmuch as the outbreak of the crisis met the narrow test for a severe and imminent threat to the state’s citizens and residents, and in view of the urgency for instituting the arrangement at the time the Government decision was made, the authorization granted under sec. 7(b)(6) of the ISA Law was sufficiently explicit, and therefore, the decision was not repugnant to the primary arrangements principle.
An arrangement of a temporary character, defined as limited in time when it was established, requires reexamination every time an extension of its force is sought. In the present matter, the weight that attaches to the urgency of the executive’s need to arrange the matter in a Government decision attenuates over time. This tips the scales toward the conclusion that the authorization by virtue of sec. 7(b)(6) of the ISA Law, which relies upon the ambiguous term “essential national security interests of the State”, cannot provide a sufficient basis for so significant an expansion of the ISA’s activity over time without the legislature addressing the issue in the framework of primary legislation.
The question of the “proper path” for addressing the authorization of the ISA is not a technical matter. In a representative democracy, in which the people are the sovereign, “decisions fundamental to citizens’ lives must be adopted by the legislative body which the people elected to make these decisions”. This basic principle is of particular importance in Israel, where there is an ongoing process of strengthening the executive branch at the expense of the legislative branch.
Primary legislation can also be enacted as a temporary order that is limited in time and suitable for the moment. In appropriate circumstances, a temporary order – which constitutes primary legislation that is temporary by definition – can provide a proper, appropriate solution for legislation in a situation characterized by a lack of information and frequent change.
Under the unique, exceptional circumstances, and given the timeframe imposed by the rapid spread of the virus, which did not allow for initiating primary legislation in order to address the role of the ISA in the crisis, the decision to act under sec. 7(b)(6) of the ISA Law was lawful. However, due to the time dimension, which constitutes a significant factor in regard to the possibility of expanding the ISA’s activities by virtue of the said sec. 7(b)(6), and in view of the fact that the arrangement established by the Enabling Decision constitutes a primary arrangement in substance, if the ISA’s continued involvement is required in order to stop the epidemic after the force of the Enabling Decision lapses on April 29, 2020, then steps must be taken to establish it in primary legislation in order to allow for the participation of the Knesset. Such legislation should be provisional in nature, and should be enacted as a temporary order.
The violation of privacy in the present case is particularly severe for two primary reasons: The first concerns the identity of the entity that is exercising the means under discussion, that is, the fact that it is the ISA – the State’s preventive security service – that is tracking the State’s citizens and residents, and the second concerns the nature of the means chosen, viz., the fact that we are speaking of a coercive mechanism that is not entirely transparent.
When an authority collects information in regard to an individual without obtaining his consent, his autonomous ability to control the flow of information about himself is effectively expropriated. When we are concerned with information collected by the security agencies, transparency should be very strictly observed. The shroud of secrecy surrounding the use of the mechanism in its current format – which derives from the desire to preserve secrecy in regard to the ISA’s abilities – is understandable. The same is true for the need to protect the privacy of people who test positive, and of those who came into contact with them.Therefore, the possibility of providing more information on the manner by which the information is collected should be considered, and the oversight mechanisms over its use should be expanded. This situation requires striking a balance between the severe infringement of individual rights – primarily, the right to privacy – that the mechanism inflicts, and the significant benefit it provides.
The ISA was granted authorization by virtue of sec. 7(b)(6) of the ISA Law, which permits the Government, with the consent of the Services Committee, to authorize the ISA to perform additional tasks to those set out in the ISA Law for the purpose of protecting and advancing “essential national security interests of the State”. The term “national security” permits authorizing the ISA to perform tasks in areas that are not at the core of security activity in the narrow sense, but such authorization requires that there be a severe, imminent danger to the citizens and residents of the state or its regime. This test sets a high bar that requires periodic examination of the situation.
At the point in time when the Enabling Decision was made, the need to contend with the outbreak of the coronavirus epidemic met the said test. However, if the ISA’s involvement is to continue after the date set in the Enabling Decision – i.e., April 30, 2020 – its authority to do so must be grounded in appropriate, primary legislation, such as a provisional temporary order. The choice to employ the preventive security organization of the state for tracking persons who intend it no harm, without the consent of those being tracked, raises particular difficulty. We must take every precaution that the unusual events with which we are currently contending will not lead to a slippery slope of using extraordinary, invasive means without justification.
Justice N. Sohlberg (Concurring): Authorizing the ISA to collect, process and use “technological information” in regard to persons testing positive for the coronavirus, and persons with whom they were in close contact, falls within the compass of sec. 7(b)(6) of the ISA Law, inasmuch as it is intended “to protect and advance other essential national security interests of the State”, but that, only when there is an imminent, severe danger to the state’s citizens and residents. The Corona epidemic presented such a danger.
(Dissenting): Inasmuch as the principle of journalistic privilege is rooted in case law, it would seem problematic to enshrine the exception to the principle in legislation. Moreover, the path that my colleagues require means denying the right of those exposed to the ailing journalist to be notified as soon as possible that they were exposed to the danger. Such a violation of the right to health – theirs and of those close to them – is unjustified. The right to life outweighs a fear of a violation of freedom of the press.
When the fear of exposing sources is so remote when we are concerned with some 5,000 journalists, and when the danger of a chain of transmission is real, it seems to me that the Government Respondents fulfilled their duty with the path they suggested, of a human epidemiological investigation that can be performed in regard to a journalist who tested positive for the coronavirus, in addition to the examination by the ISA’s mechanism whose results will not be exposed to anyone.
Deputy President H. Melcer (Concurring): Until the enactment of primary legislation in the form of a temporary order, there was an advantage to the Enabling Decision, due to the pressing need, inasmuch as it is within the framework of the ISA Law (without need for alter or suspend it), and it is subject to the review and oversight of the Subcommittee for Intelligence and Secret Services of the Knesset (hereinafter: the Service Committee), which acts by virtue of sec. 6 of the ISA Law.
The proper course at present, is that of a temporary order enacted as primary legislation that must meet the requirements of the Limitations Clause (inasmuch as we are concerned with a serious violation of the right to privacy, which is constitutionally guaranteed in sec. 7(a) and (d) of Basic Law: Human Dignity and Liberty, as well as other constitutional rights). This entire matter must be considered by all the members of the Knesset in their legislative capacity
In the current emergency, it would seem that here and throughout the world, all agree that the authorities may act in accordance with the Precautionary Principle. This principle takes the view that in order to contend with a problem created by a gap between existing knowledge at a given time and the tremendous potential and uncertain harm that may be caused by some activity if no adequate precautions are adopted, the authorities (the legislature or the executive) should be permitted to adopt measures intended to prevent the catastrophe.
Any arrangement that may be made in the future should comprise, inter alia, a provision that no material obtained as a result of the ISA’s activity for the purpose of identifying persons with the coronavirus will be used for any criminal investigation and will not serve as evidence in any trial.
Keywords
COVID-19, Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- Right to Privacy, Constitutional Law -- State of Emergency and National Security
Recommended Citation
Hayut, Esther; Melcer, Hanan; and Sohlberg, Noam, "Ben Meir v. Prime Minister" (2020). Translated Opinions. 89.
https://larc.cardozo.yu.edu/iscp-opinions/89
