A While Elephant

The Computers Law, after an incubation period of twelve years, finally hatched -- as a white elephant. That was in 1995; commercial Internet had already made its debut in Israel, but Israeli legislation reflected an archaic vision of computers existing in splendid isolation. Astounding as it may seem, the legislators failed to grasp the most essential property of the computer, namely, as a means of communication. Thus, weighty issues directly pertaining to the Internet are dealt with by citing regulations in the Communications Law. One such example is charging spammers with the offense of harassment using a telecommunication device. Insofar as one important lesson can be drawn for legislation, it is that computers laws in Israel should be consolidated with other laws, for example, Chapter B of the Protection of Privacy Law (Database Management), the Wiretap Law, the Communications Law and others- with the aim of creating a codex of information laws.

Brief as it is, the law is vague and awkwardly worded. Take for example the definition of a "computer reading language" ("a method of expression appropriate to conveyance, interpretation or processing by a computer or an auxiliary computer"), which is in turn a component in the definition of "information" ("data, symbols, concepts or orders, with the exception of a software program, expressed in computer reading language"), itself one of the two components of "computer material" ("software or information"). "Computer material" is a central element in the section of the law prohibiting penetration into computer material stored in the computer. However, the string of definitions above raises some questions: if the information must be expressed in a fashion appropriate for "conveyance, interpretation or processing by a computer" and only by a computer, it follows that penetrating information that can be conveyed, interpreted and processed by human agents (for example, word-processing files) is not prohibited penetration into computer material… Another example is the expression "unlawfully," featuring prominently in the Law: in one case (Badir), this was taken to refer to unauthorized use, while in another (Mizrahi), the court deliberated whether accessing an Internet site in violation of its terms of use constitutes unauthorized use, and therefore a criminal offense. Whatever the answers to these questions may be - the Law was way too shortsighted.

We are being strict with the Law, precisely because its essential flaw lies not within the Law itself, but in the approach of the entire enforcement mechanism: police, public attorneys, and the courts too. The police - for not enforcing the law. Every few months, the police superintendent heading the special computer crimes unit complains of insufficient manpower and the limited resources at his disposal (only nine investigators). His complaints are voiced publicly, yet ignored by his bosses. And when computer cases do reach the public attorneys, no one has the necessary expertise to handle them properly. When a competent attorney was found to handle a major computer case (Doron Porat, the prosecutor in the Badir case), he was all too soon bumped up to the position of Magistrates Court judge. Could he possibly have displayed too much independence in convincing the District Court that penetrating a voice mailbox is an unlawful wiretap, thereby making things difficult for those trying to intercept e-mails easily? In any case, with no investigations and no real prosecution, offenders feel free and easy, and crimes proliferate.

At this point, everyone stops to take a look at the court rulings. District ruling (the Supreme Court has never handed down a significant ruling on computers crime), employs all the correct verbiage. It is worded in strict terms: "It is necessary to send a clear message to that part of the public whence potential criminals may arise, viz., youngsters from a normative background, and in most cases of above-average mental ability", referring to one case (Tennenbaum). But the penalties say different. With the exception of one case in which the main offender was sentenced to six years' imprisonment (Badir), the penalties are light - no more than eighteen months' imprisonment (the Analyzer). Clearly, preaching is one thing, practice - quite another.

Anyone who thinks that an amendment to the Computers Law will put everything to rights is mistaken. The Law must indeed be amended, since it no longer applies to the online age. But a mere amendment will be of little use; the amendment must be accompanied by bolstering the ranks of the entire investigation and prosecution mechanism. The goal is to achieve an adequate body of ruling, both in quality and quantity. Only then will computers laws come into their own in Israel.

Translated by Sara Friedman