ARGUMENT: POLICE SPYWAREIsraeli Police: From Warrantless Cellphone Searches to Controversial Misuse of Spyware

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.

Amir Cahane writes in Lawfare that

 One of the more important legal cases governing the police’s eavesdropping power was addressed  by use of an expanded panel of the Supreme Court of Israel in the matter of Orich and others v. Israel. The Jan. 11 Orichruling focused on the proper application of Section 23A of the Israeli Criminal Procedure Ordinance (Arrest and Search), 5729-1969.

Cahane writes:

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.

Cahane writes that the use of Shin Bet (Israel’s domestic intelligence agency) 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. He concludes:

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.