in the Shadow
“I am not sure whether the recent precedents can be undone.”
The Knesset is not meeting, the will of the people is being ruthlessly trampled, there are no checks on the executive branch, the General Security Services are being given dangerous powers, the public is frightened. Speaking to Shomrim, Professor Michael Birnhack, one of Israel’s leading jurists on issues of privacy, raises the red flag.
March 27, 2020
Professor Michael Birnhack is the associate dean for research in the law faculty at Tel Aviv University and one of Israel’s leading experts on privacy in the digital age. When I called him to ask about the resilience of Israel’s democracy in the face of the blows it has received in recent weeks when the global coronavirus pandemic collided with Israel’s local political crisis to form the “perfect storm,” I was surprised to hear that he sounded amused.
“The Likud’s use of the coronavirus to prevent the Knesset from convening is, in my opinion, a coup. Not a coup in which radio stations and army bases are taken over, but a coup nonetheless. Elections were held. The results were announced. Knesset members were chosen, and they need to convene.”
"It’s so good for me to talk to you," he said excitedly. "It will get me out of my chair and make me start walking around, and this will help boost the number on my step tracker.” He then became serious, his tone changed, and he talked in a grim, angry, and worried voice. “Something has happened over the past day that I cannot believe the media hasn’t picked up. The Likud is using the coronavirus as an excuse not to convene the Knesset. In my opinion, this is a coup. Not a coup in which radio stations and army bases are taken over, but a coup nonetheless. Elections were held. The results were announced. Knesset members were chosen, and they need to convene. Then they will be able to do what elected officials do with the authority given to them: propose bills and then accept or reject them. But attempts are being made to even stop them from convening.”
The coronavirus is a real problem. The Likud did not invent it.
“We are, of course, facing a medical problem. However, in 2020, a country like Israel with all its technological capabilities can find many creative and effective solutions for holding Knesset sessions – either virtually or in the empty halls of the Hebrew University. It’s not a problem. If teaching at the university can be done online and the courts can listen to evidence through video conferencing, then the MKs too can meet online. Refusing to convene the Knesset is a coup.
I cannot tell you whether Israel’s democracy has ever faced such great challenges, but it is quite clear that it has not had to face such difficult challenges for a very long time. The combination of an emergency medical situation and a political-governance situation is not a good one. Each is a crisis in its own right; when they come together, the crisis is magnified even more.”
“The most flagrant example of ignoring the will of the majority is Knesset Speaker Yuli Edelstein. In essence, he is saying: ‘I don’t care whether elections were held, I don’t care that the make-up of the Knesset has changed and that one side has some kind of a majority – I will not give up my position.’”
What does this situation allow the ruling power to do and what dangers are involved?
“In such a situation, the ruling party or the parties that are part of the government can dig their heels in, remain in their positions, and refuse to obey two of the basic principles of a democracy: majority rule and human rights. At present, the most tangible example of ignoring the will of the majority is Knesset Speaker Yuli Edelstein. What he is in essence saying is: ‘I don’t care whether elections were held, I don’t care that the make-up of the Knesset has changed and that one side has some kind of a majority – I will not give up my position.’ The rhetoric being used by his party to try and describe his replacement as a dismissal is super problematic. On the contrary, he is the one leading a democratic putsch that does not honor the will of the majority.”
What about human rights?
“Human rights are always tested in times of crisis. When all is well, my rights are not put to the test. My right to freedom of movement is evident; my right to freedom of expression and to say that the world is a wonderful place and Jerusalem will remain under Israeli sovereignty forever is clear; my right to privacy feels fine and I tell myself that I don’t interest anyone and no one is tracking me. When are these rights put to the test? When someone wants to do something to them. When people want to curb our freedom of movement, our freedom of expression, and our privacy. This is precisely why we want to protect all people; we never know whether limiting a certain group today won’t lead to limiting our rights tomorrow. This is why we created these rules that state that human rights are more important than the majority opinion, even though in certain circumstances we have to strike a balance between the two.”
Like in cases of national security or public health
“Even in cases of national security or public health, we cannot accept the mantra of ‘security above all’ or ‘health issues are automatically number one.’ The very acceptance that public interest takes first place before the game has even started cancels out the entire concept of human rights. Even though it may be very difficult, I think that we are in the very situation when we have to make human rights our first priority and try to strike a balance.”
What if we cannot strike a balance?
“It may well be that at the end of this process, public interest will win over, because it is so very significant. However, the very fact that we are going through this process shows that we are trying to limit the damage to people’s privacy. This is not a clear-cut matter – it is neither black nor white – we have to find the middle ground, to see how we can take care of both issues. We need to think creatively and, excuse the cliché, to think out of the box. We cannot simply give up on human rights – it is not healthy.”
A profound fear for the long-term
One of the first jurists in Israel to deal with the effects of the digital age on the right to privacy, Professor Birnhack is particularly incensed by last weeks’ decision. In a hasty move, without full discussion or clear details, the General Security Service was given a blanket permit to track Israeli citizens in a bid to contain the coronavirus outbreak.
My conversation with Professor Birnhack is taking place a day before the Supreme Court hears the petition against this irregular move. However, Birnhack is more interested in discussing the ramifications of this move for the future of Israeli democracy. “Of course, in the short term, there are the regular fears specific to this issue,” he says. “There is always a fear that information will be passed into the wrong hands and that someone will try and blackmail or threaten me. There is also the fear that a public servant will use the data for other purposes and sell it to an advertiser or someone else. And, of course, there is the issue of data security, the fear that hackers will breach the data, and others.
However, the deeper fear is for the long term. Our rights have suffered a large dent and not a mere pinprick. We were given no opportunity to discuss the issue. They sacrificed the opportunity for discussion from the outset. So, when the next crisis occurs – be it health, security, or economic – they will tell us that the situation requires such measures and that they have already been used and the world didn’t come to an end.”
So, if the world didn’t come to an end, what’s the problem?
“The problem is that in most cases, human rights in general and the individual’s right to privacy in particular are very amorphous. When I am censored and cannot express my opinion, I can feel it. When I am told that I am not allowed to enter a club because I have ginger hair, I feel that I am being discriminated against. Yet, very often, we don’t even notice infringements on our right to privacy. Do I feel less human? Do I sleep less well? I don’t know. But even if it’s amorphous, that doesn’t mean that it’s not important.”
“Human rights are always tested in times of crisis. When all is well, my rights are not put to the test. When are they tested? When someone wants to do something to them. When people want to curb our movements, our freedom of expression, and our privacy.”
We are already used to the fact that Facebook, for example, tracks us and knows what we are doing almost all of the time. What is the difference?
“The relationship between us and the corporations is based on a contractual agreement between business and consumer. We don’t have to play along. If you are like me and you don’t want to, you don’t have to have a Facebook page. It is not always an easy game to play, and we use tools we have created such as competition law or contractual law. However, when it comes to the state, the option of ‘quitting the game’ and leaving the state does not exist. This is not a simple matter. We grant the state the authority and the tools to manage our shared lives in the best possible way. When the state uses these tools to track our movements and it is not necessarily in our best interests or is to a greater degree than necessary, then the order is reversed and we end up working for the state instead of the state working for us.”
Is the public aware of all this?
“The public is in survival mode, busy wondering how to keep the children busy, how to manage financially, and what to do with their elderly parents. This is logical. People are dealing with their lives that have become very complex. Only a few journalists and people who write posts on Facebook or tweets on Twitter seem to be worried about Israel’s democracy. I note a dissonance between the way in which elite sectors of society and the general public talk about their fears for the erosion of our democracy.”
No checks, no balances
Birnhack is far from giving up – he tweets his views on Twitter and gives interviews – but toward the end of our conversation he admits, “I am no longer sure whether the recent precedents can be undone. This is very worrying. We are all stuck in our very demanding daily routines and are not noticing what is happening around us. What we are seeing here now reminds me of the parable about the frog that is slowly cooked in a pot of boiling water until it is too late.
We have a very, very strong executive branch, but for the past year it has not had the legitimacy of an elected government, because no such government has been elected and it continues to act through inertia. The Knesset is not functioning and there is no parliamentary oversight on anything. The courts are subjected to political attack, some of which is relevant and legitimate criticism about the limits of judicial oversight but much of which is simply intended to weaken the courts in order to serve narrow personal and political interests. Add to this the media with its own difficulties, with more and more journalists blurring the lines between working as objective reporters and acting as political commentators. Some of the newspaper editors don’t know how to deal with this. It’s terrible.”
Birnhack is also disturbed by the growing use of military terminology by government officials which, he claims, helps the ruling powers to make even more dents in our already fragile democracy. “It is very disturbing to see a civilian crisis being described in military terms when it is not a war. This is typical of Israel; we talk about all things – traffic accidents for example – in military terms. But this terminology paves the way for far-reaching steps.
“Even in cases of national security or public health, we cannot accept the mantra of ‘security above all’ or ‘health issues are automatically number one.’ The very acceptance that public interest takes first place before the game has even started cancels out the entire concept of human rights.”
What do you mean?
“In Israel, security is the moloch, the idol we worship, and because of our past history, we all fall silent and cease to question or protest. I believe that when we begin talking in terms of security, the situation becomes more acute for people as does the intensity of the moment and what lies at stake. This is a mechanism according to which human rights fall by the wayside.”
This also paves the way for using the General Security Services
“The General Security Service is a security body with its advantages and disadvantages, and it has a complex history. However, it is subordinate to the law and is defined as the General Security Service and not the General Health Service. It may very will be that there is no choice but to enlist the GSS for this task, because no other body is capable of dealing with the coronavirus crisis. I personally do not believe this to be the case. What is in fact happening is that our relationship with the state, which is based on a certain set of values of trust, legitimacy, and solidarity, is becoming ‘securitized.’ When we are told that ‘at the moment everything is a matter of security,’ it is a criminal offence to break isolation orders, and the police and GSS will be used to enforce the law, citizens will say to themselves, ‘until now I relied on you, but now I am afraid of you. I may continue to behave in the same way; not because I trust the state, but because I am afraid of it.’
I think that this is very bad and can’t last. Social solidarity needs to be far stronger than the use of security measures. What’s more, why are some of the big projects such as the hotels for coronavirus patients managed by the IDF Home Front Command? I understand that they have the logistical capabilities, but I would be much happier if this operation were run by other bodies. Perhaps there is no other choice, but when you turn a civilian operation into a military one, you are left with the question of whether a patient with a mild case of coronavirus who is hospitalized in a hotel operated by the IDF is a patient, a soldier, or a prisoner.”
Give us a ray of hope. When all this is over, will Israel’s democracy be able to retrieve the assets that it is now losing?
I don’t know. Precedents have been created here. Will we suffer from short-term memory loss and forget, like after all kinds of wars we have gone through which were then forgotten as if they had never taken place? Perhaps. Or perhaps it will trickle through to the next crisis.”