הישראלי לדמוקרטיה- מרץ 2017

Recommendations

Info

VIEWPOINT YUVAL SHANY Under the radar screen? Israel’s security agencies have sweeping surveillance powers, but are subjected to few checks and balances THE SNOWDEN revelations about the existence of classified surveillance programs run by the US National Security Agency led to a number of important legal and policy changes in the United States, including the tightening of institutional safeguards and introduction of new limitations on government data collection and analysis. Specifically, intelligence services in the United States lost their authority to engage in the bulk collection of domestic telephone metadata (call logs), while new restrictions were placed on the use of incidental information collected through surveillance of foreign targets. Heightened concerns over striking a correct balance between the interest of governments in accessing data for security reasons and individual privacy rights have also manifested themselves in other contexts. For example, the European Union’s Court of Justice recently issued a decision to strike down domestic laws in the United Kingdom and Sweden that required telecommunication companies to retain their customers’ metadata (including information about their call location and on-line traffic logs) for prolonged periods of time. Furthermore, in many other countries, including Colombia, South Korea, New Zealand and South Africa, a lively public debate is taking place over the limits of governmental surveillance power. In light of these developments, the lack of attention being paid in Israel to issues of security surveillance is rather surprising. Especially given that existing laws in the country give domestic security agencies very broad powers of collection and access to data and metadata. Though Israel’s security apparatus undoubtedly has the technological capacity to access and utilize that data, the state imposes few institutional constraints and oversights on its surveillance activities. On the one hand, police access to communications content and metadata is placed under rather strict regulation – as mandated by the provisions of the Wiretapping Law and the Communications Data Law – and is subject to meaningful judicial controls. On the other hand, security services’ access to data and metadata is more loosely regulated. Data needed for national security purposes can be intercepted without judicial involvement – with ministerial authorization, subject to the approval of the attorney general (who must periodically report to a Knesset committee). Moreover, access to metadata is regulated by secret regulations. It also appears that surveillance activities undertaken by Israeli security agencies may be exempt from the scope of Israel’s Privacy Protection Law. Apparently, neither law nor practice limits the retention period of data held by telecommunication companies or by the security agencies that receive copies. Restrictions on retention and access to caller identification information are few and far between. Another area that appears to be sparsely regulated is data mining – the use of powerful search functions to extract and cross reference information available to the public. Since the Wiretapping Law allows the monitoring of “public conversations” for reasons of national security, it could be argued that data mining of publicly accessible social media and other on-line sites is not precluded under existing legislation. Finally, it’s unclear whether the prime minister has exercised his powers under the Bezeq Law to authorize the installation of a communications infrastructure, which could include interception devices, since under the provisions of the abovementioned law, any exercise of such power may be kept secret for national security purposes. The overall picture is that Israeli security agencies retain considerable surveillance powers, subject to very few checks and balances. Although some administrative and very limited judicial and parliamentary oversight does exist, much of the activity in this field occurs below the radar screen and appears to be subject to limited controls. This is a cause for concern and could invite – as we have seen in the US and in other countries – abuse of power and massive curtailment of privacy rights. How can Israelis’ privacy be better protected, without harming national security or creating the next Snowden? A few ideas should be considered: First, the appointment of an independent data protection ombudsman (such an office already exists in several countries), who would have the necessary security clearance to review laws and policies in the field of surveillance. Such an ombudsman could, in principle, also examine complaints about misuse and abuse of authority by security agencies and generate a greater degree of accountability. Second, a right to notification should be established, informing individuals whenever possible – generally, after the fact – that data or metadata relating to them was reviewed by a relevant security agency. Such a notification would allow individuals to mount a challenge, before judicial or administrative agencies, to surveillance activity they deem to be improper, rendering existing practices much more transparent. Finally, it is important for Israel to have a public discussion on the rights of data subjects (citizens) to control the information about them and their activities, as well as to review existing surveillance laws in light of the existence of such new rights. We thus need to figure out how to strike a more appropriate balance between important national security interests and newly defined privacy interests of all individuals living in a digital age. ■ Prof. Yuval Shany is a senior fellow in the Israel Democracy Institute's Center for Security and Democracy. IDI research assistant Amir Cahane contributed to this article. DEMOCRACY 3.0 APRIL <strong>2017</strong> 9
Terrorism in the digital age How does Israel confront terrorist threats in an era of online incitement and lone-wolf attacks? By Terrance J. Mintner THE VIDEOS posted on social media during the so-called “knife intifada” of 2015/16 are hard to forget. In one viral video, a man wrapped up in a Palestinian keffiyeh demonstrates how to subdue and stab a victim. After each jab, he applies a final twist to the knife – adding insurance to the life-ending aim of his actions. For many observers, it was social media like this that fueled incitement. Today, a year since those fateful events, Israel has ramped up online surveillance. But as it grapples with preventing another wave of attacks, what is it doing to safeguard democracy? What price must Israel pay to be safe? Researchers at the Israel Democracy Institute have proposed answers for protecting the queen of democratic rights: free speech. They include recommendations for better understanding incitement, monitoring threats, prosecuting, ensuring transparency and fostering social values for this era of interconnectedness. The notion of incitement has become commonplace among policymakers; they see it as ground zero in the fight against digital terrorism. The Removal of Criminally Offensive Content from the Internet bill, known as the “Facebook bill,” is the government’s attempt to regulate social media. As the bill inches closer to becoming law, it continues to raise heated debate. One point of agreement among analysts is that incitement is always incitement to something, and if that something is a clear call to violence or terrorism, then such content should be taken down immediately and criminal charges should be weighed. Anyone familiar with social media knows we are talking about tens of thousands of posts; monitoring them requires further criteria. Dr. Amir Fuchs, head of the Israel Democracy Institute's Defending Democratic Values program, says the law includes a probability clause – if content is probable to cause violence it should be targeted. For authorities, he says, “This makes sense. They try to find the inciting posts that have the most reach, likes and shares.” They can then evaluate such threats without having “to issue an indictment for everything.” In doing so, he adds, authorities must “try to maintain a coherent policy about when they indict and when they do not.” They are starting to do this, but Fuchs recommends that the government publicly disclose this policy in detail. The move would be a win for democratic transparency. While incitement to violence and terrorism is fairly clear-cut, incitement to racism is a much stickier issue; though it’s certainly not new, it is endemic on both sides of the conflict. For example, during the recent period of heightened tensions, there were reported cases of Israelis chanting “death to Arabs” or posting similar content online. Most posters did not write this with an intention to kill, says Fuchs, explaining that for free speech purists being prosecuted for such a statement would be problematic. But it could happen. Currently, the only legal criteria for prosecuting racial inciters are that their words must be “purposeful.” That’s admittedly vague, says Fuchs. The more important factor is how much danger racial speech can cause. “Only the most heinous speech about violence and racism should be criminal,” he says. Dr. Tehilla Shwartz Altshuler, director of IDI’s Center for Democratic Values and Institutions, agrees that for Israel, “a country based on the memory of the Holocaust, it’s more difficult not to criminalize racist speech.” But like Fuchs, she says it should only be enforced in “extreme cases.” Col. (res.) Liron Libman, a senior IDI researcher and former head of the IDF’s International Law division, shares this concern. “In the ’30s and ’40s, racial incitement was the beginning, and where it ends makes us more careful about such speech,” he says. It can’t just be tolerated, as some fierce advocates of free speech would like. “If you’re more pessimistic about human nature and the ability to spread fear and hate among people, then you’ll be a bit more careful, instead of just leaving it to the marketplace of ideas.” A more careful approach is evident in the Facebook bill. The Israeli government “wants to have the power to issue court orders to Facebook or Twitter,” says Fuchs. As it stands now, he explains, it does not have this authority and can only request that these platforms take down posts it deems dangerous. Altshuler understands why the government is preoccupied with stemming incitement from abroad. “A Palestinian kid can look through his Facebook feed and view a guy in Yemen calling on Palestinians to take up knives and kill Jews in Gush Etzion,” she says. Little can be done in this case. Technology and its interconnectedness bring opportunities and dangers, notes Altshuler. But she believes social media platforms already understand this and quickly remove violent or racist content. 10 DEMOCRACY 3.0 APRIL <strong>2017</strong>
Page 1 and 2: Report The Jerusalem R Democracy 3.
Page 3 and 4: GPO PROVIDING A CRUCIAL MIRROR Isra
Page 5: AMIR COHEN / REUTERS governing inst
Page 9 and 10: Commentary Gilad Malach and Nasreen
Page 11 and 12: FLEXONOMICS In a dynamic labor mark
Page 13 and 14: HOW IS IT GOING? A SNAPSHOT OF ISRA
Page 15 and 16: VIEWPOINT YEDIDIA STERN A threat to
Page 17 and 18: IDI 2016 BY THE NUMBERS The Institu
Page 19 and 20: BAZ RATNER / REUTERS information be

הישראלי לדמוקרטיה- מרץ 2017

Create successful ePaper yourself

Delete template?

Save as template?