Judicial review of digital tracking measures in coronavirus outbreak

Niva Elkin-Koren, Faculty of Law, Tel Aviv University, Israel, elkiniva@law.haifa.ac.il

PUBLISHED ON: 20 Mar 2020

Two new pieces of regulation issued by the Israeli government on 16 March 2020 authorise the Israeli Security Agency (Shin Beit) to use technological means to track citizens to assist in containing the coronavirus epidemic. Regulation one authorises the use of technological means by Shin Beit, while regulation two authorises the policy to digitally track coronavirus carriers.  

Three petitions were filed with the Israeli High Court of Justice, challenging these two sets of emergency regulation issued by the government. On 19 March 2020 around 10pm, the High Court of Justice issued several important temporary orders:  

First, banning the police of tracking coronavirus patients (regulation 2) until further notice. 

Second, limiting the powers granted to the security agency (regulation 1) to assist in tracking patients. The surveillance powers would apply only to those who are confirmed coronavirus patients (tested positive) and not to any “suspected patients”. Third, most importantly, the order bans the security agency from exercising any powers granted under regulation 1, beginning on Tuesday 24 March at noon, unless it is approved by the statutory committee of the Knesset (Israeli parliament) which is assigned by law to oversee the use of such special measures. 

The hearing of the other two petitions (challenging the authority of the government to use the secret service capabilities in time of a health crisis) will resume next week, following the filing of the government response on Sunday. 

What does this mean?

The decision of the High Court of Justice is short and balanced, and may offer some guidance to other courts around the world facing similar challenges.  

On the one hand, it allows efforts to mitigate the epidemic and save lives to get underway. At the same time, however, it also sets limits on the use of power by the government. 

In the absence of any other oversight body, due to a deep political crisis in the midst of the coronavirus outbreak, the High Court of Justice has undertaken two important roles: 

First, it effectively applied initial oversight of the emergency measures undertaken by the government. During the hearings on 19 March for over 90 minutes, the justices interrogated the representatives of the police and the security agency to learn more about the specific measure and procedures to be applied. This took place behind closed doors without the presence of the press and the petitioners. This is far from offering an ideal oversight, and it certainly does not substitute oversight by the parliamentary subcommittee of Foreign Affairs and Defence. The parliamentary committee may also hold hearings behind closed doors, yet it may call experts and is more reflective of the views of elected representatives. Given the circumstances however, even a limited judicial review by the Court offered some reassurance.   

Second, the order issued by the High Court of Justice may leverage pressure on the government to establish the parliamentary committees, and thereby fuel an otherwise stuck constitutional engine.  

As governments around the globe introduce emergency measures, courts in liberal democracies are tasked with the critical challenge of judicial review. Courts should not shy away from this duty, as it could be essential for winning the current crisis. Emergency times are dangerous times. Not simply to lives and safety, but also to our freedoms. Checks and balances embedded in our democratic principles of separation of powers, fundamental rights and judicial review are especially critical in times of emergency. This has become a cliché, yet it is extremely challenging to protect these core values when the lives and health, national security and economic safety and are at stake.  

Judicial review in time of crisis is a feature, not a bug. It could restore trust in the checks and balances embedded in our constitutional structure. Trust in the rule of law is the bond which holds our society together as a living organism and protects it from falling apart. Trust and solidarity are particularly important in times of mass quarantine, shelter-in-place orders, and lockdowns at a global scale, which makes individuals particularly vulnerable. Distrust over drastic measures may lead to social unrest, and may further destabilise our societies in critical times.

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