Welcome to China, have a nice day

A year ago The Israeli Supreme Court decided in the case of Raphael Yisascharov (CA 5121/98 Yisascharov v. IDF). The basis of that ruling was a constitutional disqualification of evidence and not a use of the Fruits of the Poisonous Tree doctrine. In Yisascharov, the court conditioned the legality of evidence if a constitutional right was violated to the following terms: (1) The violation is severe and not technical (2) The authorities knowingly breached the right with bad faith or with intent (3) no reason to breach the right (4) the evidence was obtainable without breaching constitutional rights (5) the evidence would be obtained even without using unconstitutional means.

I apologise that most links lead to Hebrew articles or court decisions, but the basis of this post is Israeli Law.

Currently in discussions in the Israeli Parliament, The Communication Metadata Act has many features, most of them are here to anchor the decision in Filosof (C 40197/06 State v. Filosof) (see also), where the court decided that seizure of most data communication, including emails and Sms requires a judicial warrant. The act’s purpose is, in general, to shorten the procedure which exists today and to allow the law enforcement authorities access to metadata. The police, and other law enforcement authorities, already have the ability to obtain this data, they just wish to circumvent the judicial procedure which disturbes them. The authorities seek more power since they claim to have less authority then they need.

Today, allegedly, a secret appendix to the telecommunication service providers’ licenses mandates them to transfer most meta-data without any judicial review or warrants (via Haim Ravia). According to The Israeli Freedom of Information Movement claims that secret appendices which they recieved (which its legality should be discussed as well, as no one knows whether it was obtained justly)Shows that the telecom providers have to supply all requested meta-data to law authorities without the disclosing this authority to the public.

Allegedly, the secret appendix allows GPSing or tracking a person without him knowing not only about the tracking (since most wiretaps involve a matter of secrecy) but about the possibility of being tracked. The procedure is quite similar to the NSL procedure disqualified at ACLU v. Gonzales(as already stated). The real question is not whether this wiretap is void, but what is the weight of evidence obtained under this mean? (of course that the FOIM’s appeal is only to disclose the existence of such appendices, and not their content or scope of operation. The major problem is that this might be a clandestine ordinance or law, which, according to the Israeli act of law and order, is void.

[The Hebrew version contained a discussion of the use of such evidence under a theoretical case]
Theoretically, if the Metadata act was not in discussion, i doubt that the question of constitutionality would have been brought. Without the knowledge of a narrowly tailored mean (i.e warrant), Israel’s security needs would (as always) prevail. In one case, the Supreme court decided that torture of prisoners must be stopped only since the Shin-Bet, Israel’s secret service, had no authority under law. (HCJ 5100/94 Public Committee against Torture v. State) The court’s stated that “There is no special order allowing the Shin-Bet to interrogate at all“. But, the lack of any order allowing the enforcement authorities to intervene in telecom licenses is inexistent. That is only the first flaw, as the Telecommunication act does not authorise the minister to set these conditions in a license.

An invasion of privacy (or breach of) may revoke the submission of evidence to the court under certain conditions. In the case of Plonit, (ראו HCJ 6650/04 Plonit v. Rabbinical Court and also Nachum Rakover Validity of evidence obtained while breaching privacy), the court stated that when narrowly tailored means are available, any evidence breaching privacy would not be allowed in the court. The invasion of privacy here is a direct result of not adopting the Olmstead ruling in Israel.

We woke up today to a new Israel. A state where we cannot trust anyone any more. Wiretapping is not required, nor is any warrant. Welcome to China, have a nice day.

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