Fidem Rex

Following the 9/11 attacks, the US Congress enacted The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, also known as The PATRIOT Act. As the law states, it’s goal is to enable the law enforcement authorities vast tools to fight terrorism. Among other things, the law deprives a wide range of human rights under the justification of National Security. (full text)

Amongst other things, The Electronic Communication Privacy Act (ECPA) was changed so that in cases required to prevent terrorism, the law enforcement authorities will be allowed to issue a National Security Letter (NSL) requesting from a telecommunication provider details regarding the identify of the subscriber, the destination of its calls or information similar to the Israeli Communication Data Act will allow to ask (Hebrew post), after legislation will end.

During 2004, several human rights organizations appealed against this clause in the PATRIOT Act, (ACLU V. Ashcroft, 334 F. Supp 2nd 471). Their appeal was accepted and the court ordered that a a clause allowing the FBI to issue NSL is unconstitutional. Following the courts decision, the US Legislator reenacted, with minor changes, and determined that when a similar warrant is requested, it will be privileged and the Telecommunication Service Provider shall be forbidden to disclosing the request and de facto barred from appealing to the courts. Among other things, the act ordered that once an FBI official decided that the privilege will not be removed due to national security or a threat to foreign relations, the court cannot remove the privilege unless the statement was made in bad faith.

After the reenactment of the law, the ACLU reappealed against the act and asked to prevent it’s enforcement. (ACLU v. Gonzales, 04 Civ 2614); The Federal Court granted the appeal in part, and ordered to remove a major portion of the NSL clause in ECPA, while citing coherently a large number of cases explaining why judicial review is a substantial part of the US Legal system. The purpose of freedom of expression is crucial, as explained by judge Victor Marrero, while citing Gentile v. State Bar of Nevada, 51 U.S. 1030, “Speech critical of the exercise of the State’s power lies at the very center of the First Amendment”.

Last week, a report (hebrew) by the public defense office was published (Via Ayelet Oz); The report describes the situation of criminal punishment in Israel and the situation of new legislation. According to the authors, amongst other things, inadaquate means of law enforcement bring us to a state where:

“[there is] a worry phenomena where law enforcement policy is determined in Israel without deep inspection of the existing situation and with no attempt to characterize the causes for social problems, feedback, basement of facts and the examination of various legislative reforms.” (Selective quotation, page 7)

The authors call for a more critical review of the news and for a reexamination of our opinions on crime in Israel; we, as citizens, tend to grasp the Government as legitimate and it’s words as truth in a too distinct way.

“The empirical data mandates that we act more critically to various bodies who seed the public with excess fear against raging crime, allegedly, anywhere in Israel, and request, whilst scaring the public, to widen the Law Enforcement Authorities, harm basic rights of the public (such as invasion of privacy), reduce the due process that protects suspects and defendants and send more people to jails for longer periods of time (page 9)

Striking down this clause of the PATRIOT Act could lead the way to understanding the constitutionality of a similar clause in Israel. The specific clause is quite similar to clause 42D of the Telecommunication Data Act which the Knesset is currently examining. The Israeli clause is apparently far more restricting than the US clause (though the US Clause grants more warrantless data). Whilst Menachem Ben Sasson that there’s no “Big Brother” act, the US Act still has higher constitutional standards, while it was struck down.

The US Act deals only with Terrorism and Its, it allows the retention and request of any electronic data that involves terrorist actions. Indeed, Human Rights are not revoked in a state of war or fighting terrorism, and ask former Chief Justice Barak stated: “”Security Means, with all due importance, cannot legitimise collective prohibitions” (HCJ 7052/03Adalla v. Minister of Internal Affairs. Therefore, and certainly if prevention of terrorism is compared to “regular” felons, striking down the act in relation to terrorism shows that in the case of minor crimes the act should be stuck down.

US Data is Subject to Judicial Review. In comparison, in Israel the Police would be the possessor of the database and would not be requested to ask the relevant data regarding the subscriber’s identity unless she wasn’t Telecommunication data that include the origin of calls et cetera; Finding out who holds a line could be performed without a warrant when the police hold the records. (See Also חוות דעתם המנומקתMichael Birnhack and Omer Tene‘s opinion).

Lack of Judicial Review. While the US Act, even if in a very limited way, the Telecommunication Service Provider could appeal to review the warrant or expose the data, In Israel all requests would be classified and the TSP will have to obey the state. Blind Obedience harms the right for due process in a far greater manner than in Gonzales (ibid, pp. 91-93)

That’s why the Israeli Act should be struck down and replaced with a less invasive act.
(Longer Hebrew Version, more political)

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