On August 11, 2021, the Ministry of Justice announced its plan to prepare a Basic Law regulating Judicial Rights, which would explicitly secure individuals’ fundamental rights vis-à-vis the judicial system and law enforcement agencies. The law refers to the right of access to courts and a fair trial (rights of suspects, detainees, and defendants).
The Israel Internet Association (ISOC-IL) responded to the Ministry of Justice’s open call regarding the fundamental rights that should be secured as part of the constitutional regulation. The following is a summary of ISOC-IL’s submission from September 2, 2021:
Explicit constitutional protection of civil rights and the right to a fair trial during digital investigative actions
Technologies and investigative tools are evolving exponentially, while Israel’s related legislation and search and investigation guidelines have lagged. The primary challenges of the existing legal system are found in the interfaces between the individual and the law enforcement system, with inadequate protection for individuals’ rights concerning seizure, intrusion, and search of computers and computer material (including mobile phones, various smart devices, and the communication between them).
The lack of a legislative framework that delineates the discretion of investigative and judicial parties at this time significantly undermines the public interest for an effective investigation or prevention of crimes; but first and foremost, it violates the fundamental right to privacy, fair trial, dignity, and property of all Israeli residents as potential subjects of interrogation.
Rectifying the current legal situation to ensure fundamental rights during investigative activities related to computing and personal information demands an explicit acknowledgment of the right to a fair trial as part of the Basic Laws. As long as it remains vague, the right to a fair trial has only limited legal protection.
Therefore, ISOC-IL calls on the Ministry of Justice to implement this fundamental revision of the Criminal Procedure Law only after securing the right to a fair trial in the proposed Basic Law. Moreover, the law should emphasize cyberspace, where the scope and intensity of constitutional rights violations are particularly severe.
The significant role of the proposed Basic Law in regulating power relations between the Israeli public and online platforms, enabling the exercise of fundamental rights and protected interests
The internet has been challenging the traditional perception of constitutional rights in a democratic society, based on the premise that the threat to individual liberties comes from the state and its authorities (as having the monopoly on setting social norms and invoking the force necessary to enforce them). The web augmented that threat. Now, powerful private entities with commercial interests are in a position to violate human and individual rights, possibly causing significantly more harm to individuals’ well-being and liberty than the government.
Scholars (as well as reality itself) indicate that dominant online platforms — Facebook, Google, Amazon, and similar non-state private entities — shape and enforce norms affecting fundamental rights and interests, often without accountability, transparency, reasoning, and the option to appeal.
Therefore, even without direct applicability to private parties, it is essential to explicitly secure the right to a fair trial under the proposed Basic Law. This step will increase the power of the individual seeking to protect their rights during legal proceedings relating to online corporations. Instead of limiting the law to the relationship between individuals and the authorities, it could shape norms and relationships between individuals and web platforms.
The Israel Internet Association, therefore, supports the Minister of Justice’s proposal to secure in the Basic Law the right to a fair trial and its components, such as access to courts (including banning contractual conditioning), and the right to a hearing before making decisions that infringe on individuals’ rights or interests. ISOC-IL further recommends that either the introduction to or the letter of the law emphasize that securing the right to a fair trial in Basic Laws is designed to shift power relations, guaranteeing that not the authorities nor companies could unjustifiably violate this right.