By: Yuval Shany

Welcome to the eighth newsletter of the HUJI Cyber Law Program.
One of the first research programs undertaken by the Cyber Law Program – the Regulation of Communication Networks Surveillance and the Principle of Proportionality – reached two important milestones this summer. First, a lengthy policy paper surveying the legal regulation of online surveillance in Israel, US, UK, EU, Germany, and India has been finalized by Amir Cahane, a researcher in the program and the Israel Democracy Institute (IDI), and accepted for publication by the latter institute (an Hebrew version of the paper will appear by early October). Amir is currently working on a follow-up study, involving a detailed proposal to establish a surveillance ombudsperson office in Israel. Second, the program held a successful series of four workshops in Israel and the UK in collaboration with the Essex Human Rights Centre’s Big Data project and the IDI, looking from a comparative perspective at the 2016 UK Investigatory Powers Act and the first steps taken by the oversight body created thereby – the Investigatory Powers Commission.

The research undertaken so far, and the detailed engagement with comparative law, clearly show that Israeli law significantly lags behind most Western democracies in regulating retention, collection, and access to data and metadata and in providing adequate independent safeguards against misuse of surveillance powers. While there exists a relatively modern piece of Israeli legislation (the Metadata Law, 2007) regulating the use of metadata in policing, and subjecting such use to specific grounds and judicial review, the comparable framework governing preventive security powers (principally exercised locally by the Israel Security Agency) is much looser and includes open-ended grounds for access and collection, limited guidance on retention, and relatively weak internal safeguards against misuse.

It is against this background that the program (in collaboration with the IDI) is seeking to stimulate professional discourse in Israel about the need for reforming online surveillance legislation. In particular, we believe that there is a need to consider introducing in Israel a UK-inspired “double lock” system (where internal safeguards are backed up by independent external safeguards); a special advocate kind of system in which privacy interests are represented by an independent advocate in proceedings involving retention, collection and access to data and metadata; and a system of ex post facto notification for those targeted by online surveillance. New legislation in the field would facilitate adjusting the current system that was developed against an offline technological reality to the much more intrusive and extensive capacities of online surveillance (and use of big data). By working on the interface between abstract and comparative models and policy imperatives in the field of online surveillance, we hope to make a real impact on the law and practice in this field, in Israel and beyond.

I would like to take this opportunity to welcome to the program two new additional members of our international advisory board: Prof. Joe Cannataci, the UN Special Rapporteur on Privacy, who has worked extensively on issues relating to online surveillance; and Ms. Melissa Hathaway, who has vast experience in working on cyber security and internet governance in government, academia, and the private sector. We are very proud that both of them agreed to join our program, further enhancing the profile of what we believe is already a very impressive board.

Please do not hesitate to contact me with any questions, comments or suggestions about the work of the program.

Sincerely,

Yuval Shany

Program Director