The rule of law in the time of coronavirus outbreak

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Niva Elkin-KorenFaculty of LawUniversity of HaifaIsrael[email protected]

PUBLISHED ON: 18 Mar 2020

A new regulation issued by the Israeli government on 16 March 2020 authorises the Israeli Security Agency (Shin Beit) to use technological means to track citizens to assist in containing the coronavirus epidemic. In particular, the regulation authorises the security agency to “receive, collect, and process technological information” concerning the location and activity of confirmed Covid-19 patients and potential carriers of the virus, during the 14 days prior to their diagnosis, in order to identify the locations visited by the patient and people they have been in contact with. The data are intended to be used by the Ministry of Health in epidemiological investigations. A second set of regulations authorises the police to get location data from mobile phone companies on confirmed coronavirus patients “for the purpose of warning the public or a specific person” without a court order. It further authorised the policy to receive location data on citizens which are required to stay in home quarantine.

Jurists have raised serious concerns regarding the governmental seizure of unprecedented powers without sufficient checks and balances. In fact, the government has bypassed a decision of the parliamentary Interim Foreign Affairs and Defence Committee, which refused to approve the regulation without thoroughly examining its implications to ensure it reflects an adequate balance between preserving the public’s health and protecting individual rights.

A petition filed on 17 March 2020 in the Israeli Court of Justice by civil activist Shahar Ben Meir, demands the court to freeze the surveillance by the security service until oversight mechanisms are set. The Court will hold a hearing on the issue on 19 March.

The petitioners claim that the broad and vaguely defined surveillance authority violates the right to privacy while failing to satisfy the constitutional proportionality standard. The right to privacy is a fundamental right under Israeli law, secured by the Basic Law: Human Dignity and Liberty. Regulation which infringes basic rights is subject to the Limitations Clause in section 8: “There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.”

The current mega health crisis certainly demands that government protects lives, sometimes at the cost of privacy violation. Yet, the question is whether less intrusive alternatives have been sought before resorting to such drastic measures. South Korea, which has been praised by health experts for curbing the coronavirus spread, for instance has launched an app to be used by those who were already subject to a self-quarantine order, rather than subjecting the entire population to surveillance. 

More importantly, fundamental rights are not a luxury, which must give priority to life saving efforts in times of crisis. The mitigation of the current pandemic depends primarily on individuals’ self-compliance with health guidelines. It also requires collaboration. People willingly share information on their location and contacts since they wish to protect their neighbours and loved ones. Yet, the self-discipline and social commitment, which are required to confront the pandemic, involve a high level of trust. Surveillance of the type introduced by the new Israeli regulation is likely to undermine trust, and to increase gaming and circumvention attempts. People may leave their phones at home, use different sim cards, and seek alternative means of communication to bypass surveillance. This may not only hamper public efforts to confront the health crisis, but also further deepen the distrust in government agencies and undermine social solidarity. 

The coronavirus pandemic meets Israel at a moment of deep constitutional crises. The current government suffers from fundamental distrust among citizens, and lacks legitimacy after failing to regain power after three election cycles.  

Restoring trust in a time of emergency is essential for overcoming national crises.  Restoring trust in our social contract requires compliance with the rule of law. Securing fundamental rights is therefore not a luxury in time of crisis. It is a must for successfully winning the fight against the virus. It is also a must for ensuring we wake up in a free society at the other end of the crisis.