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Cabinet green-lights probe into police use of spyware

Justice Minister Levin and Attorney General Baharav-Miara are at loggerheads over need for phone hacking investigation.

Israelis protest at Habima Square in Tel Aviv, demanding the establishment of a state commission of inquiry into the Pegasus phone hacking affair, Jan. 17, 2022. Photo by Tomer Neuberg/Flash90.
Israelis protest at Habima Square in Tel Aviv, demanding the establishment of a state commission of inquiry into the Pegasus phone hacking affair, Jan. 17, 2022. Photo by Tomer Neuberg/Flash90.

Israel’s Cabinet on Sunday approved the establishment of a committee to further investigate police improper use of spyware technology.

The committee’s first task is to establish a regulatory framework that will allow law enforcement to effectively utilize spyware to combat crime and terrorism while protecting individual rights and strengthening public trust in law enforcement institutions.

The committee is set to convene in the coming weeks under the chairmanship of former district court judge Moshe Drori and will submit its conclusions to the Cabinet within six months.

Justice Minister Yariv Levin first requested that such a panel be formed in July. Levin said then that he would seek to empower the committee “to review the conduct of the police, the State Attorney’s Office, and their supervisory systems, in all matters relating to the procurement, monitoring and collection of information using cybernetic tools against citizens and office holders.”

A spokesperson for the Justice Ministry told JNS that the committee will be fully empowered to call witnesses, requisition documents and records, and provide policy recommendations to the Cabinet.

“The panel will be given all the tools necessary to fully investigate the issue,” the official said. “A balance can be struck that will allow effective operations against crime and terror but also protect privacy.”

The Pegusus Affair

The government probe comes in direct response to the police spyware scandal that broke in 2022 and came to be known as “The Pegusus Affair,” in reference to Israeli-developed software, Pegasus, which allows full access to infected cellphones including all files, data and even the phone camera and microphone. Pegasus is one of the most powerful spyware programs ever developed.

In 2022, the Calcalist newspaper reported that the Israeli Police used a weaker version of Pegasus, known as Saifan, to hack into the phones of dozens of prominent figures including politicians and business leaders as well as associates and family members of Prime Minister Benjamin Netanyahu. This spyware was being used to collect evidence for Netanyahu’s ongoing corruption trial, according to the report. 

Initial investigation into the Calcalist accusations by Deputy Attorney General Amit Marari showed that the claims were largely incorrect.

However, a further investigation by a committee appointed by Marari concluded that while the police did not break the law they did vastly exceed their authority. Between 2015 and 2021, the Israeli Police used spyware to infect between 1,086 and 1,800 phones and to extract information that possibly exceeded the authorized warrants, the committee said.

In response to these revelations, the police were largely restricted from the use of spyware except with the explicit approval of the attorney general. In announcing the new probe, Levin directly referenced the Pegasus Affair, calling it “one of the most serious incidents in recent years.”

Attorney General Gali Baharav-Miara expressed deep concern about the formation of this new probe, going so far as to claim it is illegal. The Attorney General’s Office opined that because there is no concrete evidence that the Siphon spyware was used in ways that violated warrants, the probe lacked legal grounding.

Baharav-Miara further wrote in a letter to Levin that he had no authority to involve himself in open legal cases and that she was worried the committee may interfere with the prime minister’s trial.

Deputy Attorney General Gil Limon supported the attorney general’s position, writing to the Cabinet, “Any dealings with ongoing criminal proceedings, even unintentionally, could create the appearance or concerns about political influence in investigations and trials.”

Limon added that the new probe was redundant as the state comptroller had already formed a similar committee to examine police use of cyber espionage.

To alleviate accusations of a conflict of interest, Netanyahu recused himself from the Cabinet’s Sunday vote and left the room while the ministers discussed forming the committee.

Fatal infringement

Levin has rejected the position of the attorney general, saying in a statement on Sunday, “Exposing the truth of the matter, and preventing similar incidents of fatal infringement of Israeli citizens’ right to privacy, is vital.”

The justice minister added that such a probe was necessary “in order to strengthen public trust that was damaged by the Pegasus Affair.”

Levin said that the concerns of political interference were groundless as the probe would investigate police use of spyware specifically, and not look at the broader criminal case against the prime minister. Levin speculated that the attorney general was blocking the investigation due to personal interest as her office’s actions would also be examined.

Baharav-Miara is scheduled to be the first witness to testify before the new committee.

“I regret the reservations of some of the parties involved in this serious affair against conducting a thorough examination of the matter, despite the severe conflict of interest in which they find themselves,” Levin said of the attorney general. Baharav-Miara is “curtailing human rights,” the minister added.

MK Simcha Rothman, chairman of the Knesset Constitution, Law and Justice Committee, said such a probe was necessary to ensure the rights of Israeli citizens, and that Baharav-Miara was “hiding something” by opposing the investigation.

In a tweet on Sunday, Rothman wrote, “There must not be people or entities that are immune from criticism and investigation for violating the rights of citizens and suspects.”

The law enforcement community has largely expressed opposition to such an investigation.

“Police the subject of a committee is the last thing we need in these difficult days and while fighting crime, especially in the Arab community,” a police spokesperson said. “Such a committee will stall the restoration of the technological tools for many more months. The committee will cause a difficult situation in the SIGINT [signals intelligence] division, people will have to hire lawyers,” he added.

The Israel Security Agency (Shin Bet) and the National Security Council have also expressed concerns, saying that “operational secrets” may be exposed as a result of such a probe.

The office of the justice minister said, “The establishment of the committee in no way delays the use of the [spyware] tools. This is a story that was invented as a shameful attempt by police to prevent its establishment. It was specifically agreed that we would not wait for the committee and allow the police to act according to what the attorney general permits according to the law.”

The Police Spokesperson declined to respond to JNS inquiries regarding these issues.

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