State Comptroller Matanyahu Englman and the Privacy Authority both announced on Tuesday night they will probe the police regarding a Calcalist report accusing law enforcement of using NSO Group’s Pegasus hacking technology against Israeli citizens.
The charges, if true, are particularly inflammatory because the report said the police acted without required court approvals, sometimes sufficing with approvals from the Attorney-General’s Office and sometimes with only police official approvals.
Reactions to the report varied, with the police on Tuesday morning initially sending out a categorical denial of the article without addressing the report’s seemingly impressive specifics.
Later on Tuesday, however, Israel Police Insp.-Gen. Kobi Shabtai personally addressed the allegations, denying that the police had used NSO or similar hacking technologies against the cellphones of mayors suspected of corruption, of activists against gay pride parades or of anti-Benjamin Netanyahu protesters.
“There was no use of these tools against ‘Black Flag’ protesters, council leaders or people who opposed the gay pride parade,” Shabtai said. “Everything is done with the necessary legal authorization.”
Further, without explicitly confirming or denying the use of NSO’s Pegasus, he said anytime the police might use advanced technologies, such as for hacking cellphones, proper legal approval was obtained.
On Tuesday night, Israel Police Deputy Head of Investigations Yoav Telem told Channel 12 any use of advanced technology techniques, such as hacking cellphones, would only occur against a suspect of a serious felony and after court approval.
In contrast, Channel 12 reported the police had used the technology of the company Cellebrite to hack a Black Flag protester’s cellphone.
Former police chief Yohanan Danino said he would never have approved the use of cellphone hacking technology in the manner described in the article.
Moti Cohen, who was police chief from December 2018 to December 2020, declined to respond, though he said he had seen the report about NSO.
Public Security Minister Omer Bar Lev also issued multiple statements over the course of the day.
On Tuesday morning, he said he had done an initial check and was satisfied that the current police under him had not and were not hacking Israeli citizens’ cellphones without proper court approval.
“There is no practice of wiretapping or hacking into devices by the Israel Police without the approval of a judge,” Bar Lev said in response to the report.
However, later in the day, his tone seemed to shift to also include a more serious commitment to look into whether the police might have misused NSO or other cellphone hacking technology against Israeli citizens prior to his term.
Likewise, Shabtai said the police would probe any possible past abuses.
With Englman announcing his probe and that he places “special emphasis on the protection of Israeli citizens’ privacy,” as well as the Privacy Authority’s probe, it was unclear whether one probe or another might be set aside to clear the way for one primary investigation.
The astounding report, if true, blew gaping holes through a number of NSO, police and potentially state prosecution narratives about the proper balance between collecting evidence and respecting citizens’ privacy rights and court protections from unlawful searches and seizures.
The entire system of searches and seizures for police wiretapping and other invasive measures is supposed to be based on a carefully calibrated apparatus of approvals from courts.
According to the report, the police have been using cellphone hacking technology since 2013 as a loophole because the specific technology was not discussed by prior laws, which themselves were written before the technology existed.
Despite that historical discrepancy, it has been clear from court decisions and prior precedent that the alleged police use of Pegasus against suspects in regular criminal murder, corruption and other cases, if true, would be a blatant violation of legal limits if they were carried out without a court order.
The report suggested that the police have gotten away with this conduct by “packaging” evidence they collected from hacking cellphones illegally as “intelligence,” but without revealing the source.
Allegedly, some officials in the state prosecution and Attorney-General’s Office were in on the secret as they gave some of the approvals, which would require them to explain how they could sidestep the courts.
A spokeswoman for the Attorney-General’s Office directed questions to the police, while confirming that her office does not have independent authority to approve cellphone hacking without court approval in non-terrorism cases.
Under Israeli law, the Shin Bet (Israel Security Agency) has the power to carry out such cellphone hacking without a court order to prevent impending terrorist attacks from either Palestinians, Arab-Israelis or Israeli Jews, as long as various top officials from the agency or the Attorney-General’s Office sign off on it.
But this same power, with no court order, does not exist for the police, and certainly not for non-terrorism-related cases.
Pegasus was purchased by former police chief Yohanan Danino in 2013, and its use was escalated by then-police chief Roni Alsheich in 2015, the report said. Alsheich came from the Shin Bet and brought in new officials to the police with intelligence backgrounds who had a different cultural approach to collecting evidence than its more traditional one of waiting for court approvals.
Further, the report said under former justice minister Amir Ohana, the police were ordered to use the cellphone hacking against anti-Benjamin Netanyahu protesters.
NSO made a general denial of having violated any laws, but it generally fell back on its standard statement that it cannot reveal who its clients are and is not responsible for its clients’ conduct.
“We wish to clarify that the company does not operate the system once sold to its governmental customers, and it is not involved in any way in the system’s operation,” NSO Group said in response to the report.
“The company’s employees are not exposed to its customers’ targets, nor are they privy to the collected data, the ongoing operations or any other investigations by its customers. NSO sells its products under license and regulation to intelligence and law enforcement agencies to prevent terror and crime under court orders and the local laws of their countries.”
Sources did point out that some of the sales numbers and other concrete details in the article appeared to be wildly unrealistic, which could also draw into question the credibility of other information in the article.
It was also noted that the article did not present any forensic proof for the allegations.
However, NSO has numerous times said it is impossible for its technology to be used for Israeli citizens.
The Jerusalem Post has learned that it is impossible for non-Israeli clients to use Pegasus against Israelis, but that in theory it might not be impossible for Israeli agencies to use Pegasus on Israelis (with the presumption that they would be doing so according to Israeli law).
Justice Minister Gideon Sa’ar and former justice minister Ayelet Shaked had not yet responded to the allegations at press time.
MKs from both the coalition and the opposition reacted to the report.
Knesset Speaker Mickey Levy was asked by MKs to form a parliamentary commission of inquiry to investigate.
In his appeal to Levy, Shas MK Moshe Arbel said it was intolerable that such a program was permitted to be used without a court order.
Meretz MK Mossi Raz said the rights to privacy and protest are fundamental, and the police endangered Israeli democracy by violating those rights.
“A weapon that can cause such grave harm should not be used at all, especially not without proper supervision and against protest movement leaders,” he said.
Meretz MK Michal Rosin wrote a letter to the Police Investigations Department demanding an inquiry. She said if true, the actions are a violation of the principles of democratic government and the rule of law.
The head of the Knesset’s Internal Security Committee, MK Merav Ben-Ari (Yesh Atid), said she would convene her committee on the scandal next week.
“The police, who are responsible for the security of Israeli citizens, cannot harm their security and democratic rights,” Ben-Ari said. “I usually support the police, but there are instances that warrant criticism. I won’t let such incidents happen under my watch.”
Knesset Constitution, Law and Justice Committee chairman Gilad Kariv (Labor) also discussed holding hearings on the issue.
The report came as NSO had the worst few months of its existence, getting slammed left and right by the US and French governments, media reports across the globe and human-rights groups.
Recent reports indicated that the spyware provider might not survive the ongoing crisis financially.
Jerusalem Post Staff contributed to this report.