No general right to oblivion under Israeli law

In a first of its kind decision, the Tel-Aviv district court ruled that a subscriber of cellular services does not have a general right to have his phone records deleted.
Cellular providers maintain and store, as a general practice, a record of the calls made by their subscribers. The phone records include lists of phone numbers called, received calls, call durations and calls dates and time.  
The plaintiff, Amir Liran, a subscriber of two cellular providers (Pelephone and Partner), filed a civil action against the providers, on grounds that they unlawfully retained his subscriber’s phone records for periods of 8 to 10 years.
In his complaint, the plaintiff argued that cellular providers store phone records for billing purposes only, and as soon as a subscriber pays for the calls he made, the relevant phone records should not be retained. The plaintiff petitioned for the permanent deletion of his phone records.
The defendants argued that they need to retain phone records for lawful business purposes, including for settling accounts with third parties (such as interconnection cross-payments), internal audits, tax filings, future litigation and mandatory reports to the ministry of communications.
Defendants further pointed out their obligation to provide information to law enforcement agencies for investigatory purposes, counter-terrorism and locating missing persons.
The Attorney General, who joined the proceedings, argued that as long as the records are kept for legitimate purposes while taking appropriate measures to secure the data, there are no grounds for ordering defendants to delete the records. The AG further argued that retaining phone records serves public interest, as it is often required to investigate and to prevent unlawful activities.
The court viewed phone records retention as a potential threat to an individual’s privacy. However, the court further ruled that data retention embodies advantages and benefits as well: At the subscriber level – it allows the subscriber easy access to his records and enhances his ability to monitor the services he uses. It also allows better review of customers’ complaints, and increases consumers’ ability to file class actions; At the general public level: It provides factual basis and findings for studying trends in cellular services use and it supports law enforcement activities.
The right to privacy is a fundamental (semi-constitutional) right, under the Freedom and Human Dignity Basic Law. The Privacy Protection Act sets a balance between the right to privacy and other rights and legitimate interests and regulates data protection. Inter-alia, the Act provides that a person may use data stored in a data base he owns, only if the data base was lawfully registered with the data bases registry, and any use of the data must be consistent with the data base’s registered purposes.
The court ruled that plaintiff did not prove, or even argue, that defendants used the records in a manner inconsistent with the registered purposes of their data bases. In light of the above findings and the benefits of records retention, the court dismissed the complaint.
However, the court made clear that the scope and duration of data retention is a matter that requires separate review.
Hopefully, the court’s decision will serve as a starting point for meaningful discussion on data retention reasoning and justifications, and the need to balance them with the right for privacy and self autonomy.

(CP 1994-06 Amir Liran v. Pelephone Communications Ltd and Partner Communications Ltd. Delivered by the Tel-Aviv District Court on November 30, 2010).

For further information, contact Dan Or-Hof, CIPP