Marianne Azizi writes:

The Supreme Court of Israel has denied a petition to unseal records under a certificate of state immunity. The petition alleged that the State of Israel uses Pegasus and similar spyware to monitor journalists and human rights activists. 

On 10 June 2018 Judge Neal Hendel said that once a certificate of immunity is issued, it cannot be repealed. Therefore, it is impossible for criminal case defendants in Israel to expose whether they have been targeted for surveillance by Pegasus or its sister spyware, Da Vinci.

Israel’s chief prosecutor reported in the first week of July that the state is indicting a former employee of the cyber-arms dealer, NSO Group, for trying to sell the notorious Pegasus spyware for $50 million over the dark net. In a press release, cited by all major media, he said that if such software leaked to the wrong hands, it would pose severe damage to Israel’s security. At the same time, all Israel news outlets reported that certain governments who legally purchased the spyware had actually used it against innocent people, or outside the permitted usages delineated in the contracts. Such contracts must be approved by the Israeli government, even though NSO is a commercial business. Countries where such violations occurred were Panama, Mexico and the United Arab Emirates. However, no one so far has ever challenged Israel’s own use of Pegasus and its ilk, until the Lory Shem Tov trial that ended up in Neal Hendel’s court.

In February 2017, the Tel Aviv cyber police arrested around 15 reporters and activists as well as five lawyers. An indictment was filed against two reporters, Lory Shem Tov being the main defendant, and one of her lawyers. The indictment alleges a conspiracy to defame and ridicule the Israeli judiciary and to sabotage the works of government social workers by way of publishing articles portraying the judge and social workers in a demeaning way, laced with profanities and sexually derogative comments. Lory Shem Tov is still in detention 16 months later. During the trial the prosecutors filed a certificate of immunity in relation to evidence collected between November 2015 and June 2016 by covertly planting cameras, microphones and spyware in her bedroom, computer and cellular phones.

Shem Tov’s co defendants filed a motion to unseal the information generated from the snooping police activity, claiming that if police knew the insulting articles were published from her home, then they should be acquitted, as there appears to be no conspiracy. They also claimed that if the police knew in real time that she was publishing her articles from home, then by arresting her in November 2015, they could have saved all the other 70 complainants who were insulted until the day of arrest in 2017. It was argued that this embarrassment, and possible exposure of the state to lawsuits by the 70 complainants for not preventing the publishing activities in time, was the real reason for issuing the certificate of immunity.

Judge Abraham Haiman of the Tel Aviv District Court disagreed and issued an order confirming the need for sealing the police hacking records due to “public interest”. At the Supreme Court Judge Hendel confirmed the decision was indeed unappealable.

Lawyers for the defendants and other privacy activists are upset.

It is simply impossible to uncover the huge extent of surveillance by Israel against its own citizens, because to date no motion to unseal similar certificates of immunity has been successful. The courts of Israel automatically dismiss all these motions. There is no data collected, and there is no way to overcome the judicial reluctance to examine police methods and targets, said one of the lawyers in the case. It is ironic that now, when the state is indicting the former employee of NSO, it is citing the complaints made overseas against rogue and dictatorial regimes, but then who approved these sales to begin with, if not the government of Israel? 

Why is Israel now pretending to be so morally superior compared to Panama,and Mexico, when it spies on its own people on a regular basis?