New Report Analyzes Israel’s Regulation of COVID-19 Digital Contact Tracing

After having relative success in curtailing the spread of the novel coronavirus in the first phase of the pandemic, Israel experienced a rise in the number of diagnosed patients, resulting in a second countrywide lockdown. Restrictions have been gradually lifted since the end of October 2020, but the number of cases has been increasing. As of December 2, 2020, the COVID-19 positivity rate was reportedly 2.3%, and the highest number of cases since October 29 was recorded, following the lifting of some restrictions imposed during the second general lockdown.

Some experts expressed the view that Israel was “on its way to a third lockdown in a month and a half… as the daily number of patients has tripled since the end of the second lockdown.” Researchers at the Hebrew University, however, explained that there was “still a long way to go before a lockdown was needed, and until then control and enforcement in outbreak hotspots should be increased.”

One of the measures used by the Israeli government since the beginning of the pandemic to stop transmission of the virus is contact tracing. Tracing has involved questioning of diagnosed patients by phone or in person, using tracing technology via a voluntary app, and surveillance by the Israel Security Service (ISA) without the consent of those observed. In accordance with a decision of Israel’s Supreme Court rendered on April 26, 2000, the usage of surveillance technology by the ISA for coronavirus patient tracing required legislation. (HC 2109/20 Ben Meir v. Prime Minister.)

Involuntary surveillance for the purpose of COVID-19 contact tracing is now regulated under temporary special legislation (ISA Authorization Law) that defines the scope, procedure, and duration of the activity, while addressing the constitutional challenges associated with it. The ISA Authorization Law will expire on January 20, 2021, unless extended by a legislative act.

The Law Library of Congress report, Israel: Regulation of COVID-19 Digital Contact Tracing, analyzes the ISA Authorization Law’s objective, scope and conditions for implementation. Among other matters, the ISA Authorization Law requires the government to issue a declaration for ISA authorization, prescribe the conditions and duration of such a declaration, and lay out procedures associated with ISA tracing and tracing data preservation, usage, transmission, and erasure. The report includes assessments of the effectiveness of technology-based contact tracing relating to both voluntary apps and ISA surveillance.

Contact tracing by either digital means or by questioning of patients raises challenges for the protection of the right to privacy guaranteed under Israel’s Basic Law: Human Dignity and Liberty and regulated under the Privacy Protection Law 5741- 1981, as amended. A Global Legal Monitor article describes the privacy protection requirements that apply to collecting, using, and preserving data retrieved via contact tracing. We encourage you to review this article as well, for information that may be relevant for the implementation of the ISA Authorization Law.

A comparative law report on Regulating Electronic Means to Fight the Spread of COVID-19, which surveys 23 selected jurisdictions around the globe, is also published on the Law Library of Congress website. For additional information related to legal developments associated with the pandemic, check this blog as well our Global Legal Monitor under “COVID”, “epidemics”, or related terms.

Stay well and safe.