Supreme Court: Police Cannot Order ISPs to Block Access to Gambling Websites

The Israeli Supreme Court ruled yesterday (March 24) that the district chiefs of the Israel National Police do not possess the authority to issue warrants ordering Internet access providers to block Internet access to gambling websites. The Supreme Court judgment thereby dismissed the State's appeal against the landmark decision delivered by the Tel Aviv District Court of Administrative Affairs in April 2012, on the petition brought by the Israel Internet Association (ISOC-IL) (see the English summary and the English translation of the original decision of the Court of Administrative Affairs). Justice Vogelman delivered the opinion of the Supreme Court on the appeal, with Chief Justice (President of the Supreme Court) Grunis concurring and Justice Solberg dissenting.

Justice Vogelman, who laid down the majority opinion, held that three interpretational steps are necessary to determine that the warrants directed at the access providers are in fact substantiated in the authority vested by section 229 of the Israeli Criminal Law (which governs the "closure" of a "prohibited gaming, lottery or gambling venue"). First, it must be established that an Internet website constitutes a "venue", as this term is defined in the Criminal Law; second - that blocking access to a website is equivalent to its "closure"; and third - that Internet access providers can be used to exercise these powers.

Justice Vogelman held that an Internet website can be deemed a "venue" and that an online gambling site is considered a "prohibited gaming venue", in accordance with the purposive interpretation of the respective provisions of the Criminal Law, in the spirit of time and advancing technology, which renders section 229 of the Criminal Law applicable in the "virtual world".

As for the alleged infringement of the freedom of expression, Justice Vogelman ruled that even if some of the gambling sites include legitimate content such as images, explanatory notes, chat rooms, etc., such content lies at the margin of the protected interest of free speech. Therefore, even if blocking gambling sites might incidentally block access to lawful content within them, "we should remember that the "expression", which this case seeks to protect, is not of high value and that the degree of protection afforded corresponds to the degree of the interest in question." Justice Vogelman asserted that "dealing with the sensitive topic of blocking websites, we should especially scrutinize the concern for free speech infringement. With respect to gambling websites, and only them, my opinion, as mentioned above, is that the infringement of free speech resulting from the blocking of lawful content contained in the gambling websites, is of a limited degree, if any."

The Court added that if there is concern that inoffensive sites will be incidentally blocked - "clearly that would be a severe infringement of the freedom of expression and the right of access to information, which would require express statutory authorization as well as satisfying the conditions of the [constitutional] limitation clause".

The Court held that the primary obstacle for the State is a fundamental one - the use of a third party for exercising its closure powers, absent express statutory authorization. Justice Vogelman expressed his view that the State cannot hinge on section 229 of the Criminal Law to exercise its authority by way of issuing warrants directed at third parties, the Internet access providers. "Absent explicit statutory reference, it is not possible to compel a private entity to perform acts for the authorities... the issuance of warrants in the case before us, violates the principle of administrative legality".

The Court ruled that an administrative authority cannot operate beyond the confines of the powers vested in it under law, and that this rule must be meticulously followed especially when it comes to Police powers. Justice Vogelman concluded that "Section 229 of the Criminal Law does not authorize a Police district chief to issue warrants directed at Internet access providers, ordering them to block the access to gambling websites. In my view, express statutory authorization is required and the current statutory arrangement is insufficient, because it lacks authorization to order a third party to assist the enforcement authorities in exercising the powers".

From the outset of his opinion, Justice Vogelman found no grounds, in his view, to controvert the District Court's ruling that the ISOC-IL has standing in these proceedings. He noted that "the Association seeks to promote the interest of the public's internet users; it does not seek to protect its own special interest, but rather an interest it shares with the general public or significant parts of it, and as such - its petition is a 'public petition'". Vogelman also added that "the arguments ISOC-IL has raised are grave with respect to the alleged overstepping of authority in the issuance of warrants to Internet access providers. We are dealing with the first attempt to define the boundaries of the Police district chief's authority pursuant to section 229 of the Criminal Law with respect to blocking access to Internet gambling websites. This is a fundamental question".

The Supreme Court decided to dismiss the State's appeal and awarded the ISOC-IL attorney's fee in the sum of 25,000 NIS. {Administrative Petition Appeal 3782/12 Tel Aviv District Chief of the Israel National Police v. The Israel Internet Association (in Hebrew) }

Disclosure: Advocates Haim Ravia, Dan-Or Hof, and Yossi Markovitz of Pearl Cohen Zedek Latzer represented the ISOC-IL in the petition and the appeal proceedings reported above.