As Israel grapples with the aftermath of explosive allegations that police illegally spied on dozens of Israelis, the country’s journalists are calling to be exempt from possible future legislation to oversee surveillance of citizens through spyware.
Israel’s justice ministry last month denied a report by Israeli tech site Calcalist about the allegedly unlawful use of Pegasus spyware by Israeli police. An internal investigation determined that the claims, which newspapers including The New York Times could not replicate, were largely unfounded.
However, the furor over the Calcalist report, and the ministry’s acknowledgement that police had used spyware on a phone belonging to a key witness in the corruption trial of former Prime Minister Benjamin Netanyahu, has prompted fears among journalists that any overhaul of Israel’s surveillance laws could hamper their reporting.
“We want to protect our sources,” said Anat Saragusti, press freedom director at the Union of Journalists in Israel, which sent a letter to the attorney general with the group’s demand. “We want to protect freedom of information, and we want to protect our assets.”
A February statement from the justice ministry noted that in 2018 police infiltrated a phone belonging to Shlomo Filber, a now former director general of the Communications Ministry who was under investigation at the time. He is now state’s witness in the Netanyahu trial.
In order to monitor Filber’s phone, police obtained a wiretapping warrant – a particular detail that raised the eyebrows of legal experts in the country.
“It’s unclear what exactly is the legal basis for what [police] have done,” said Michael Birnhack, a privacy law professor at Tel Aviv University.
Israel has no law authorizing “cyber-tools” like spyware for law enforcement purposes, according to the Israel Democracy Institute – and the wiretapping law cited to monitor Filber’s phone dates back to 1979.
The decades-old wiretap law, said Birnhack, is an ill-fit to authorize spyware given that the technology can do so much more than listen in on calls – it can suck up old data in the form of texts, photos, voice memos, and more, without the owner’s knowledge.
“The technological options exceed regular search and they exceed wiretapping,” he said.
With spyware there’s also a risk of “exposing excessive data” beyond the scope of a warrant, said Birnhack — something that happened in Filber’s case.
According to the justice ministry, police acquired extra information like Filber’s contact list, which they said was not passed on to investigators. (The ministry also said that the spyware infiltration did not yield anything relevant to the investigation.)
Even if journalists are exempted from legislation regulating spyware, police use of the technology has implications for the profession. Anat Ben-David, a professor of society and technology at Israel’s Open University, worries about a chilling effect on the press.
“This is uncharted territory at the moment, but I will say this: just knowing that this is a possibility could lead to self-censorship and to changing journalistic norms and instilling fear.”
Ben-David questions whether the technology belongs in the hands of police at all, given its extreme prying capabilities.
Pegasus, made by the NSO Group – an Israeli company now under U.S. trade embargo – allows the purchaser to access virtually everything stored on a cell phone and activate its microphone and camera without the owner’s knowledge.
CPJ has documented the use of Pegasus to spy on journalists around the world. Amnesty International and the University of Toronto’s CitizenLab said it was found on Palestinian activists’ phones, though Israel has denied it was behind the alleged hacks.
The justice ministry did not identify Pegasus as the spyware used on Filber’s phone, but a later statement made it clear that Israeli police do have the controversial technology. The police department, said the statement, did not use the “Pegasus software in its hands” to spy without a warrant on the people named in the Calcalist report.
NSO Group spokesperson Liron Bruck replied “no comment” when CPJ asked in an email if it provided Pegasus or other spyware to Israeli police or other authorities. An Israeli police spokesperson said in an email the department could not “confirm or deny” use of Pegasus.
Ben-David also worries that the impetus to legislate spyware is following a pattern in which Israel introduces new monitoring technology and later legalizes its use against citizens.
“Surveillance technologies are introduced through the back door, and after petitions to the Supreme Court they enter through the front door through legislation,” said Ben-David.
She pointed to the security services’ tracking of cell phones to curb transmission of COVID-19. After repeated legal challenges from civil rights groups, the Israeli Knesset passed a law approving the tracking. In March 2021, Israel’s Supreme Court outlawed the practice for Israelis who cooperated with contact tracing efforts, though it was briefly reinstated by emergency order to counter the Omicron variant.
But journalists can find their sources exposed through other means. Police obtained information about Filber’s calls with two Israeli broadcast journalists, Amit Segal of Channel 12 and Raviv Drucker of Channel 13, when it spied on Filber’s phone, according to Haaretz.
Segal told CPJ that he learned that his interviews were snooped on from the newspaper, while Drucker learned about his exposure in the course of his own reporting. A justice ministry spokesperson would not confirm or deny the Haaretz report in a phone call with CPJ.
It’s not clear if police used spyware or another type of monitoring technology to listen in on the calls with the journalists.
Regardless of the method used, Segal told CPJ it was “not very pleasant” to learn that police had accessed his interviews with Filber, especially since he reports critically on the police.
“They shouldn’t wiretap conversations with journalists,” said Segal, who added that police are not supposed to transcribe conversations between journalists and their sources. “It is not OK, but it is not the most severe attack on journalists the world has ever seen.”
Drucker, for his part, called it a “breach of the journalistic relationship between a source and a journalist.” A private conversation with a source “is not something that should be exposed.”
Drucker added that he hopes lawmakers considering surveillance legislation “will take into account the interest of the free press and the free media and journalists’ ability to do their work.”
Now, Segal, Drucker, and the Israeli press corps at large, are watching to see if the government will heed their concerns.