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Digital tracking of citizens is a too high price to pay

The manifold and multisystem impact of the coronavirus is becoming more apparent day by day: an imminent crisis in the healthcare system (thousands of victims, according to Health Ministry projections ), an economic crisis (an inevitable local and global recession; mass layoffs — half a million individuals losing their jobs within a month; the devastation of entire economic sectors), and a social crisis (grandparents unable to hug their grandchildren for months, the loss of an academic year, “love means keeping your distance”).

To all of these must be added the looming possibility of a crisis of democracy. When our health and income are in doubt, when our routine is brutally interrupted with no expected date for the return of normalcy, when freedom of movement and assembly are denied, conditions are ripe for the imposition of drastic measures that are totally unacceptable in a democracy. This is no longer a prediction, but rather — a fact. As these lines are being written, all Israeli citizens are subject to the digital monitoring of their whereabouts, by means of the sophisticated methods available to the General Security Service. This is a democratic nightmare. Is it justified?

According to news reports, geolocation by means of their cellphones makes it possible to track the whereabouts of COVID-19 patients for the previous 14 days, to cross-check this information against information on everyone who was in their vicinity, and to send quarantine instructions to anyone who may have been exposed to the coronavirus. The hope is that this procedure will slow down the rate of contagion. Clearly then, the monitoring serves a worthy purpose: saving many lives. On the surface, if we weigh the infringement of our privacy against the damage to our health and the right to life, this measure, for all that it is extreme, seems to be warranted.

However, we must not give in so easily to the intuitive idea that “anything goes” in order to save lives. In normal times, we are used to balancing the right to life with other rights. For example, we do not raise taxes in order to expand the healthcare service basket and save thousands of persons, on economic grounds; we do not ban cigarettes or high-sugar foods, despite their toxicity, out of respect for individuals’ free choice; we do not impose stringent speed limits on our highways, for reasons of efficient travel; we do not supply all our soldiers with ceramic vests, and we continue to pollute our environment, even though it is clear that different policies on these issues would save lives. The talmudic sages taught that “everyone who saves a single life is considered to have saved an entire world”: but this is an essential guideline for humankind, not a practical action plan. Even in the midst of the coronavirus pandemic, the right to life must be balanced against other rights.

The digital tracking to which we are all exposed now is a draconian measure. A tool intended to protect citizens against terrorism has now been turned against the citizens themselves. In normal times, the police need a court order in order to monitor an individual citizen; but now the permission to do so is in effect — unlimited and applies to anyone “suspected of being ill” (an undefined term), if so determined by any physician and against all those who were near a suspect during the past two weeks — with no judicial oversight. The decision to implement this radical measure was taken without review by the Knesset; without being referred to the Privacy Protection Authority; by an unelected caretaker government that invoked the Emergency Powers Regulations; by means of a telephone poll of the ministers which took place in the dead of night. Many fear that we have begun falling down the slippery slope of violation of human rights that will lead to a severe crisis of our democracy.

It is important to emphasize that the attorney general, whose credibility, professionalism, and commitment to democratic values are unquestionable, approved these measures. He did so after ascertaining that the content of our calls would not be collected, that the location data would be deleted after 30 days, that it would be made available only to a “restricted group,” that it would not be exploited for any other purpose, and that other protective mechanisms would be installed. These are important lines of defense, but more are needed. It is essential to guarantee that the arrangement will be reviewed by the new Knesset as soon as its committees are established, that the regulations have a defined expiration date, and that any future extension or modification of them, will be made with full transparency, vis-à-vis both the Knesset and the public at large. In any case, the High Court of Justice has already been asked to rule on the regulations, and this review is to be welcomed.

The coronavirus crisis must not be used as a cover for an assault on Israel’s democratic values. On the contrary, it is precisely our shared commitment to democracy — as a form of government, as a political culture, and as a system that is obligated and committed to the defense of human rights — that will enable us to deploy, in the very best way possible, our true secret weapon against the virus: mutual responsibility.

Article by Yedidia Stern, a senior fellow at the Israel Democracy Institute and professor of law at Bar-Ilan University.