Computers, Privacy & the Constitution

Why is it that Israelis, Despite Their “Rich Experience,” are Just as Negligent as Anyone Else About Their Privacy?

-- By UdiKarklinsky - 02 May 2015


Professor Moglen expressed his wonder about the fact that even Israelis, that have a relatively solid understanding of their government’s unique intelligence capabilities, lack basic awareness when it comes to their own privacy. As a former military officer, who has grown to be (until this semester…), a not-particularly-worried-about-his-own-privacy civilian, this comment resonated with me. In this paper I aim to explore the roots and implications of this societal (mis)conception.

“Intelligence?! That’s for Arabs… We’re Safe”

Trying to understand this tension between common understanding of intelligence and a lack of awareness to its risks, I find it necessary to consider the unique Israeli context. Generally, Jewish Israelis’ (“Jews”) strongly identify with Israel as "the state of the Jewish people," and hold the conviction that it is there to protect them and therefore that they are on the "right side," the safe side, of state action. Jews are certain that intelligence and other sorts of governmental privacy attacks, just like tanks or F-16s, was not meant for “us,” but for “them”. For most Jews, I assume, this conceptual division between "us" and "them" is not only between citizens and non-citizens, but also between Jews and Arabs (20% of Israel's civil population). It seems that in our collective sub-conscious, regardless of the deep internal-Jewish conflicts (ethnic, socioeconomic, religious or political), when it comes to perceived threats to our privacy, the only meaningful division is Jewish/Arab. As members of the Jewish hegemonic group, we are convinced that our privacy is safe and sound, not threatened by "our own" intelligence capabilities.

Israel's military Intelligence (most-notably Unit 8200), the Shin Bet (“ISA”) and the Mossad are perceived to be holding technologically-advanced surveillance powers, but in the Jewish public’s mind, those do not pose any sort of threat. Meanwhile, the police is being considered by the public as the more inward-looking entity, but also as much less active, skilled, and technologically-capable in these matters. Because of this strong conceptual division, Jews do not connect the government’s intelligence capabilities to threats upon their own personal lives.

This is Clearly a Misconception.

Indeed the Jewish-Arab division is very prominent in the contemporary Israeli existence, but in reality Jews are also very vulnerable to governmental threats to privacy.

First, despite of the ISA’s focus on Palestinians, it has the legal, technological and organizational capacity to turn its look toward each and every one of us. For instance, Section 11 of the ISA Act (Hebrew-only) allows the ISA, in a nearly unlimited and unrestrained manner, to access, copy and restore the communication databases (everything but call content) of any Israeli communication provider, without need for court approval. This means that to some extent, we are all already “targets,” and the government is only a simple search away when we will become "of interest."

Second, there is no good reason to think that the technological threat upon privacy is limited to only some of the agencies. Just because certain technology and skills currently reside in certain agencies, does not mean that these will not be easily transferable in the future. Here (Hebrew-only) is an example for how the police recruits officers from Unit 8200, to provide technological and organizational knowledge. Additionally, even if the police will remain technologically far-behind, it is unclear whether there are sufficient legal protections against flow of information between agencies. In a recent high-profile investigation ("Harpaz Affair") ( - Hebrew-only), both the police and the State Comptroller requested the ISA for information from its Section 11 databases (for decisions on indictments and an audit report, accordingly). The Comptroller argued the information is “required to establish or refute an attempt to undermine basic values of law, order and governance.” However, the ISA head (justifiably) refused, explaining that this would be inappropriate for the ISA to use its capabilities for issues beyond its authority. Although the ISA made the right decision in this high-profile case, the open channel of communication for such requests should raise many worries. It appears that the only buffer is the discretion of the ISA head; not what I would call a “strong protection of privacy.”

Third, a closer look into the past and present shows that threats to privacy are already not limited to Arabs. The ISA’s Department for Prevention of Espionage and Subversion (More known publically, how appropriate with the argument made above, as the “Non-Arab” or the “Jewish” Department), was and is active against Jewish groups at both ends of the Israeli political spectrum, from communist movements in the 1950s to extreme far-right settlers more recently. The ISA is authorized to “prevent illegal activity aimed at harming the state’s security, democratic order and establishments” (ISA Act, Section 7). This vague definition, coupled with the current anti-leftist wave in Israeli politics, situates the ISA in a threatening position to the privacy of those not in power. A good example could be found in Haaretz’s report about the ISA summoning radical left activists to “friendly conversations” shortly before a planned protest. The ISA said that this was done under the organization’s authority, in order to “convey messages designed to thwart illegal activity.” Yet it seemed that there was no imminent illegality, and the “conversations” were mainly used to explain that “big brother is watching,” and demonstrate the effectiveness of the surveillance measures taken. In the past few years, right-wing movements and politicians have successfully orchestrated different campaigns aimed at smearing civil-society organizations associated with the left, as radical, illegitimate and even anti-Israel traitors (see, e.g., the anti-NIF campaign; or this MK’s demand to charge a former official for treason because he promoted EU support for a Palestinian state. As public opinion shifts along these lines, the ISA’s broad authority and capabilities could become an oppressive power present in the lives of more and more of us. And then, we might finally realize that privacy is a big deal even though we thought we were “on the right side.”

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r2 - 29 Jun 2015 - 15:35:22 - MarkDrake
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