By Dan Or-Hof, CIPP

New Law Regulates Law Enforcement Access to Communication Data

Law enforcement agencies in Israel have been granted broad access to information held by telecommunication service providers, under legislation aimed at regulating communication data transfer during the course of criminal investigations.

Following several months of deliberation by the Israeli Knesset's Constitution, Law and Justice Committee, the Communication Data Law, formally called the Criminal Procedure (Enforcement Powers — Communication Data) Law, 2007, was enacted on December 17, 2007.

Under the new law, two parallel routes are available for law enforcement agencies to acquire communication data from telecom service providers.

The first route is through a court order. In contrast to past practice, a request for a communication data warrant now must consist of considerable details, and include sufficient reference to past requests regarding the same investigation and suspect, as well as to previous relevant court decisions and transcripts. Prior to issuing a warrant, the court must determine, among other things, the severity of the underlying crime, the nature of the required data and the anticipated impact on the privacy of individuals. Furthermore, the execution of the order must be carried out within thirty days.

The second route is through senior police officers who have been vested with specific authority to order transfers of communication data without a warrant in urgent circumstances and in felony investigations, for a period of up to 24 hours. Before approving the data transfer, the authorizing officer must be convinced that the relevant data has to be received without delay and that there is insufficient time to issue an appropriate court order.
Under the new law, communication data includes location data, subscriber account data and traffic data, such as URLs and IP addresses. The new law specifically precludes the contents of transmissions. Content interception is regulated by the stricter provisions of the Wiretap Law, and computer data search and seizure are subject to specific provisions in the Criminal Procedure Order.

Apart from regulating data transfer in specific investigation-related circumstances, the Communication Data Law also establishes an information database that has become a source of significant controversy in Israel. The new law stipulates that the head of the police's investigations and intelligence bureau may order landline and cellular service providers to provide up-to-date subscriber identification details, unique serial numbers of phone devices (such as IMEI numbers) and cellular mapping data. As there are more cellular devices in Israel than there are people, the database is expected to be of unprecedented scale.

To date, the police and Justice Department have refused to reveal the purpose of the database except to the chairman of the Knesset's Constitution, Law and Justice committee. The police are granted immunity from disclosure in such circumstances by the Freedom of Information Act, leaving the public in the dark about the database's use or purpose.
Opponents of the Communication Data Law, which include a broad range of scholars and telecommunication service providers, as well as the Association for Civil Rights in Israel, have raised a public outcry against the new law. They argue that the new law fails to uphold constitutional standards for the protection of civil rights and specifically may violate the right to privacy. They also argue that lawmakers have failed to abolish what many consider the obsolete differentiation in electronic communications between content data and traffic data, and thus provide law enforcement agencies with the power to obtain private information without sufficient scrutiny.

The Communication Data Law will come into force in June 2008. Opponents of the law have indicated they may take their case to the Supreme Court of Justice, Israel's highest court.

Full disclosure: The author represented a telecommunications service provider in the Knesset's Constitution, Law and Justice Committee deliberations.

Dan Or-Hof is a partner at Pearl Cohen Zedek and Latzer LLP and the manager of the firm's IT and Internet group. Currently based in Israel, Or-Hof is an attorney (LLM) and a CIPP. His fields of expertise are computer and Internet law, communications law, copyright law, and Data Protection and Privacy law. He publishes articles and lectures on privacy and other legal issues, participates in bills discussions and hearings held by the Justice Department and the Knesset, and co-contributes to his firm's first Israeli legal Web site at www.law.co.il. He can be contacted at dano@pczlaw.com and at +972.9.9728000.


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