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Israel: Police Not Authorized to Block Gambling Websites

(Mar. 29, 2013) On March 24, 2013, the Supreme Court of Israel rendered a decision in an appeal filed by the Israeli police against the Internet Association of Israel. Justice Uzi Vogelman rejected the appellants’ claim that district police commanders in Israel have the authority to order Internet service providers (ISPs) to block access to gambling websites based on section 229(A)(1) of the Penal Law, 5737-1977. This provision authorizes district police commanders to “direct the closing of … a place for prohibited games or a place for the conduct of lotteries or betting.” (Penal Law, 5737-1977, §229(A)(1), Laws of the State of Israel Special Volume Penal Law (1977).)

Justice Vogelman held that although a gambling website may be viewed as “a place,” the blocking of which may also be viewed as its “closing” within the meaning of section 229(A)(1), the main obstacle to applying the authority contained in this provision is the lack of an expressed authority to order private third parties, in this case the ISPs, to assist in the implementation of that authority. According to Justice Vogelman, when the law grants a governmental agency authority, it is presumed that the legislator intended that agency, and not another, implement it. This is particularly true, according to Vogelman, with respect to criminal law enforcement. “Therefore, the State – as [the party which] has formulated norms of behavior and which is in charge of their enforcement… is directly responsible for the restraint and inhibitions required in implementing [that authority] …” (AdminA 3782/12 Commander of the Police of Tel Aviv-Yafo District in Israel v. the Israeli Internet Association par. 14 [in Hebrew], State of Israel: The Judicial Authority website (Supreme Court decision, Mar. 24, 2013) (translated by author, R.L.).)

Justice Vogelman explained that there are various legislative arrangements that enable governmental agencies to order third parties to assist in implementing an agency’s authority. However, what is required, he held, is an expressed authorization for the issuance of such orders. (Id.)