The Battle for Email

The State Attorney, Edna Arbel, recently (May 2000) laid down policy that email that is not in the possession of an Internet service provider but is likely to pass through its computers in the future, can only be seized, kept and copied after an appropriate order has been obtained by virtue of the Secret Monitoring Law, 5739-1979. Arbel thereby accepted the position of the ISP, Netvision Ltd, in legal proceedings conducted by it against the State, which was trying to get hold of email by virtue of a routine search order issued by the Tel Aviv Magistrates Court. Shortly afterwards the Tel Aviv District Court held that ISPs cannot be made to perform continuing tasks in the service of Israel’s law enforcement agencies.

Arbel’s policy was laid down after extensive discussions in the State Attorney’s Office, in which senior members of the Office took part together with representatives of the GSS, the police and the IDF. The basic question on the agenda was: in what way can the State bug or tap into emails of an Israeli Internet subscriber; can it do so by virtue of an order issued by the Magistrates Court, even on the application of a junior investigator of the military police, or is it "secret monitoring" that necessitates an order from the President or Deputy President of the District Court, on the application of a senior police officer? This was not merely a technical concern but an issue of constitutional importance in view of the right to privacy’s embodiment in section 7 of the Basic Law: Human Dignity and Liberty. Where secret monitoring is involved, the Law requires the judge who issues the order to consider the infringement of privacy caused as a result of the order and the discretion is vested in the most senior judges of one of the highest courts.

In the context of a covert investigation into bribery and fraud in tender proceedings, Judge Dorit Reich-Shapira of the Tel Aviv Magistrates Court allowed an application by a representative of the military police that was conducting the investigation and on 9th February 2000 she issued an order against Netvision to deliver to the military police all the incoming and outgoing email of four individuals (insofar as they were Netvision subscribers), from the time they became subscribers to the time of receiving the order. At the heart of the order was a direction to the company to keep all the incoming and outgoing email of those subscribers for 60 days after being served with the order, to record it and deliver it to the applicant.

Netvision believed that an indefinite order to keep email and furnish it to the authority was a secret monitoring order, within the meaning of the Secret Monitoring Law, the power to award which is vested solely in the District Court further to an appropriate application by a police officer of at least the rank of assistant commander, and there was no power to make the company perform it. It therefore first applied to the Military Advocate’s Office in an attempt to persuade it that the order was flawed and after its efforts failed, it applied to the Tel Aviv Magistrates Court to set aside the order. The company warned of a circumvention of the Law, which would deter the public from freely using email, frustrate the object of the Secret Monitoring Law, which is "... to permit private and confidential conversation even in the era of advanced technology in the communications market" (the Explanatory Notes on the Draft Secret Monitoring (Amendment) Law, 5754-1994), and impair the development of the Israeli electronic communications market.

Moreover, on 19th December 1999 the Tel Aviv District Court had held that listening to the messages stored in a "voice box" constituted prohibited secret monitoring of a conversation, within the meaning of the term in the Law (CF 40250/99 the State of Israel v. Ben Kassam Badir). The Court thereby accepted the position of the State, which had accused the Badir brothers of an offence under the Secret Monitoring Law in respect of listening to messages of that type. According to Netvision, an email box is just the same as a voice box and cannot be listened to without an appropriate order either. It therefore could not even give the military police the notices that were on its computers when it received the order.

For the aforegoing reasons the company believed that the Magistrates Court had acted ultra vires in issuing the order, which ought to be set aside.

On 6th April 2000, Her Honour Judge Reich-Shapira dismissed Netvision’s application to set aside the order (MF 6703/00). The Judge accepted the position of the State’s attorney, Adv. Assaf Rosenberg of the Tel Aviv District Attorney’s Office, that email waiting on the ISP’s servers is conversation that has ended. She held that the Secret Monitoring Law does not extend its protection to the time after the conversation has ended and that messages of that type, which are stored on computer, can be monitored by virtue of a search order within the jurisdiction of the Magistrates Court.

The Judge held that email is the same as ordinary mail: "In my opinion, the Respondent’s attorney rightly equated the Applicant’s computers, on which email is stored for subscribers, with a P.O. Box of the Postal Authority and just as the police can search a P.O. Box on obtaining an order without reference to the question of whether the addressee has yet managed to receive and read the mail sent to him... so a search can be made on the Applicant’s computers... Electronic mail, as its name implies, is mail that is transmitted by communications lines that in the modern era have replaced the ‘gazelle’ of the Ministry of Communications that carried letters in previous decades. The fact that modern technology makes it possible to transmit mail by telephone lines does not turn email into a ‘conversation’ after it has been formulated and arrived in the computer box". The Court further held that "the Secret Monitoring Law does not protect someone who transmits information to another indirectly and deposits it with a third party... When email is received on the computers of the Applicant (Netvision - H.R.), it obtains control of the mail and as such, the privacy of the Applicant’s subscribers is solely as provided in the Computers Law".

Finally, although the Judge believed that it was appropriate to reconsider the order insofar as it required Netvision to keep email for 60 days after its award, she decided not to do so because she found that Netvision had delayed in bringing the application to set aside.

A few days after the decision, Netvision filed an appeal in the Tel Aviv District Court (MF 90868/00). The company pleaded in the appeal that the Secret Monitoring Law also extends its protection to a telecommunications message, which involves symbols and characters and as such includes email. Netvision argued that the transfer of the message is not completed until it reaches the "party to the conversation", as defined in the Law and email, which is on the ISP’s computers waiting for the subscriber to download and read it, is therefore a type of telecommunication "conversation" that has not yet been completed. Monitoring, recording or copying those messages without the consent of one of the "parties to the conversation" (the sender or recipient of the email) amounts to secret monitoring within the meaning of the Secret Monitoring Law.

In the notice of appeal, Netvision further pleaded that the Magistrates Court had erred when it created a "course to circumvent the Secret Monitoring Law", thereby making the Secret Monitoring Law a dead letter as regards computer networking. According to the company, comparing email with physical mail rather than a telephone conversation is too narrow a concept, that is inconsistent with the amendment to the Secret Monitoring Law, which specifically clarified the point that it was designed to protect a "conversation" conducted by any media or technology, including symbols and writing (telecommunications and facsimile). The amendment to the Secret Monitoring Law is aimed at establishing a more liberal concept of conversation (the exchange of messages) and the means of transmitting them, whereby the written message in computer networking is a substitute for speech/sound, rather than written mail. By so erring, the Court of first instance failed to hold that the protection against the secret monitoring of a conversation also extends to email.

The company asserted that in the Court’s decision it reached the illogical result that if emails are intercepted en route to the ISP’s computers or from them to the subscriber, that is secret monitoring, which can only be permitted by virtue of the Secret Monitoring Law, whilst if the same messages are intercepted the instant that they reach the ISP, they can supposedly be copied by virtue of the more lenient procedures laid down in the Criminal Procedure Ordinance. According to it, the order was making the Appellant, a private company, into the executive arm of an investigative agency, despite the fact that it is not a government authority and there is no precedent for a private entity being required to devote manpower, computer resources, working time and money to the conduct of secret monitoring.

The Deputy President of the District Court, His Honour Judge Arie Even Ari, on the application of the company, stayed the delivery of the material to the military police. The evening before the appeal hearing, despite the Magistrates Court’s contrary decision, the State Attorney’s Office announced its policy, as aforesaid, that requires the State to obtain an order by virtue of the Secret Monitoring Law, if it wishes to intercept a suspect’s email traffic. It should be emphasised that the State Attorney still believed that by virtue of the search and computer intrusion provisions pursuant to sections 43 and 23A of the Criminal Procedure (Arrest and Search) Ordinance, an ISP could be ordered to deliver up the email on its computers the moment that it receives the order, but to require it to keep the email likely to pass through its computers in the future would necessitate a Secret Monitoring Order. Netvision disputes the State Attorney’s position with regard to the use of search and computer intrusion orders and believes that email on its computers when the order is received is also a conversation that has not yet been completed, the copying of which requires an order pursuant to the Secret Monitoring Law. On the face of it, the State Attorney’s position in this respect is not consistent with the District Court’s decision in Badir, when it held that unauthorised listening to the messages stored in a voice box was secret monitoring. Nevertheless, in the current case the parties agreed that since no such mail was in Netvision’s possession when it received the order, each party could reserve its pleas with regard to the proper legal method of seizing it.

Finally, although the State Attorney laid down proper policy with regard to the confidentiality of Internet conversations, the State nevertheless applied to obtain the email that had been kept by Netvision pursuant to the original order in the particular case, in order not to frustrate the investigation. Netvision objected to the application. The Deputy President of the Tel Aviv District Court, Judge Arie Even Ari, held in a fundamental decision of 22nd June 2000 (MF 90868/00) that the Court cannot order ISPs to perform ongoing acts in the service of the investigative agencies.

Despite his finding, in the particular case the District Court did order Netvision to deliver the email traffic that had been kept by it by virtue of the Magistrates Court’s order. At the same time he ordered that if the State were to apply to use the information as evidence, it would have to legitimate it pursuant to the proceedings laid down in section 13 of the Secret Monitoring Law in respect of evidence obtained by secret monitoring. The Court thereby acknowledged the ISP’s argument and the policy laid down by the State Attorney that the seizure of email before it has reached the ISP’s computers is prohibited secret monitoring and it upheld the parties’ agreement in such respect.

In its decision, the Court set a fundamental precedent in respect of the ability of the State authorities to subject ISPs to the performance of duties. Judge Even Ari held: "It does not appear to us that an entity like the Appellant can be ordered to be ‘the long arm of the law’ and do various acts over a protracted period (e.g. 60 days)…. Prima facie, it appears that these are acts that require the investment of resources and money and the legal basis for such a liability is unclear to us... In the absence of legal authority, the citizen, be it a private or public company, cannot be made to perform acts in the scope of an investigation".

The Court sought a balance between the protection of privacy and the needs of the investigation: "There is no doubt that the right to privacy is a fundamental, constitutional one, the impairment of which should only be impaired after consideration of all the objects and interests involved in the impairment", it held. "Email users expect their privacy to be maintained and, a fortiori, the public interest, which seeks to encourage the free use of modern computer networking, requires that the provisions of the Secret Monitoring Law should be strictly performed. The purpose of the Law will thereby also be served. On the other hand, the authorities’ refraining from infringing the privacy of conversations in the era of modern communications is not always possible, albeit desirable, when on the other hand another vital public interest might be harmed". It therefore ordered that in the instant case the material that Netvision had stored should be delivered to the investigative authorities, despite acknowledging that the process that had led to its storage had later been shown to be improper.

Translated by Word Power