Bill delineating police use of spyware passes preliminary vote in Knesset

A bill proposal to enable the Israel Police to use spyware to extract under certain conditions the content of personal electronic devices without the owner’s consent passed a preliminary vote in the Knesset plenum on Wednesday.

According to the proposal, the use of spyware by the police can be made without witnesses and without the knowledge of the owner of the computer, if the police “becomes convinced that such a search is required for the discovery, investigation, or prevention of an offense punishable by more than 10 years in prison, or for the apprehension of criminals who have committed such an offense, and the purpose of the search will be blocked if it is conducted openly.”

The bill’s goal is to enable the use of spyware to combat organized crime, according to the proposal’s explanatory section.

Proposed by Otzma Yehudit

The bill, proposed by Otzma Yehudit MK Zvika Fogel, also requires that the use of spyware be approved by a regional court judge, and that the request be made by a police officer with the rank of commander (equivalent of colonel) or higher.

The bill sparked controversy, since it came instead of a government bill that the attorney-general reportedly refused to support due to ministers’ objection that it apply to corruption investigations into elected officials.

In an opinion to the Ministerial Committee for Legislation dated October 27, Deputy Attorney-General Sharon Afek wrote that the private bill’s author insisted that it apply only to offenses punishable by over 10 years in prison, in order to exclude bribery, which is punishable by up to 10 years but not more.

In addition, the private proposal’s author removed all the offenses related to corruption from a list of exceptions that appear at the end of the bill. The list included a number of offenses with punishments of less than 10 years in prison, for which the use of spyware will still be permitted.

According to Afek, the deliberate removal of all corruption-related offenses from the bill signals to potential criminals that the police is prohibited from using spyware in corruption cases, and thus the bill could create a “safe haven” for potential corruption-related crimes.

This is especially worrisome since acts of corruption, by nature, are difficult to prove, and the use of spyware could be especially useful in such cases, Afek wrote.

Furthermore, Afek argued that organized crime was often involved in corruption of elected officials as well, and therefore removing corruption offenses contradicted the bill’s stated goal to fight organized crime.