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Summary

Israel’s Secret Monitoring Law, 5739-1979, generally protects privacy rights in Israel by prohibiting the monitoring of conversations, but also carves out certain exceptions to the prohibition in order to protect national and public security. Access to communications data, including traffic data and information regarding the location and identity of a subscriber, may also be authorized for saving or protecting human life, investigating or preventing offenses, identifying and indicting offenders, and lawfully confiscating property. In addition, warrantless orders for access to communications data may be issued under emergency situations to prevent the perpetration of a serious offense, identify the perpetrator, or save human life. Warrantless orders can also be issued for national security purposes under limited circumstances and for a limited duration.

The Order Governing the Control of Commodities and Services (Engagement in Encryption Items) 5735-1974, as amended, prohibits any person from engaging in encryption in the absence of a license issued by the Ministry of Defense and in violation of the conditions enumerated in the license. The Order identifies three types of licenses and exempts certain encryption activities from the licensing requirements.

I. Secret Monitoring

Israel’s Secret Monitoring Law, 5739-1979, provides that “listening to the conversation of another” by means of an instrument in order to prevent and detect crimes generally requires a warrant issued by the president of a district court or his designee. [1] However, listening to conversations conducted in the public domain to protect state security and to prevent and detect crimes is exempt from this requirement. [2] Monitoring international conversations for military censorship and monitoring conversations that utilize communications systems used by the Israel Defense Forces (IDF), the Israeli Police, employees of the Ministry of Communication, and licensed service providers are similarly exempt. Wireless communications for the frequency ranges that are used by amateur radio operators and for broadcasting to the public also do not require permission under the law. [3]

The Law also authorizes the Prime Minister or the Minister of Defense, upon a written request by the IDF Intelligence Division or the General Security Service (GSS), to authorize secret monitoring after considering the extent of harm to privacy and determining that the monitoring is necessary for state security. [4] Granting or extending authorization for secret monitoring for state security reasons is subject to a three-month limit, which can be periodically extended. [5] In emergency situations and subject to conditions enumerated in the Law, the head of the Israel Security Agency (ISA) or the IDF Intelligence Division are also authorized to issue permits for monitoring conversations. [6]

Under the Communications (Communications and Broadcasts) Law, 5742-1982, the Prime Minister may issue instructions to a licensed communications service provider (licensee) to provide or facilitate government surveillance in response to a request by the Minister of Defense, the Minister of Domestic Security, the GSS, or the Institute for Intelligence and Special Operations (the Mossad), on the basis of state or public security considerations, and after consultation with the Minister of Communications. [7]

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II. Interception of Communications Data

Access to communications data, including information regarding traffic data and the location and identity of a subscriber, may also be authorized by a warrant issued by a circuit court upon the request of an officer designated for this purpose by the General Police Commissioner or by a representative of another investigative authority defined by law. [8] The court will issue a warrant if it determines that access is required for saving or protecting human life, investigating or preventing offenses, identifying and indicting offenders, or lawfully confiscating property. [9]

Warrantless orders for access to communications data may also be issued by an authorized law enforcement officer for a limited duration when the officer is convinced that there is an imminent need to receive communications data without delay to prevent the perpetration of a serious offense, identify the perpetrator, or save human life. [10]

The GSS Law, 5762-2002, authorizes the Prime Minister to issue rules categorizing data (excluding the content of conversations) that must be made accessible to the ISA by communications licensees for national security purposes. [11] Orders for data transmission issued by the head of the ISA in accordance with these rules must specify the type and purpose of the data and the particulars of the database in which it is stored. Such orders are effective for a limited period of up to six months and may be renewed. [12]

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III. Regulation of Encryption

Encryption is regulated by the Order Governing the Control of Commodities and Services (Engagement in Encryption Items) 5735-1974, as amended (the Encryption Order). [13] On the basis of a 1998 amendment to the Encryption Order, the control and licensing of encryption items were transferred “from a military to a civilian licensing authority—i.e., from the IDF to the Ministry of Defense.” [14]

The Encryption Order prohibits any person from engaging in encryption in the absence of a license issued by the General Manager of the Ministry of Defense and in violation of the conditions enumerated in the license. [15]

The General Manager of the Ministry of Defense is authorized to enter any place where an encryption related activity is being conducted and request a licensee to provide information at any time before and after the issuance of an encryption license. [16]

The Order provides for three categories of licenses for engaging in encryption:

A “Restricted License” – a license that imposes restrictions on engagement in encryption items. These restrictions may also apply to permissible forms of engagement in encryption items, or to the nature of permissible sales (e.g. restriction on selling to certain countries and sectors). As a rule, a restricted license is valid for one year.

A “Special License” – is a license for specific engagement; generally involving sale to clients who do not fall under the restrictions imposed on an applicant for a Restricted License. As a rule, a special license is valid for one year.

A “General License” – a license for a particular encryption item which allows the license-holder free use of that item (other than modifications or integration that essentially create a new item for which a separate license is required). The sale of such items of encryption is decontrolled and not subject to reporting procedures. Such general licenses are issued with no time limit to their validity. [17]

The Order also provides for a category of “Free Means,” which exempts certain encryption activities from licensing requirements. “Free Means” is defined as

a means of encryption for which a general license has been granted or which the Director-General has declared to be decontrolled. Once an encryption item is defined as a free means, it is free of the licensing restrictions. A periodically revised list of encryption items which have been declared “decontrolled” is published in the Official Gazette of the Government of Israel as well as on [the Ministry of Defense] website. [18]

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Prepared by Ruth Levush
Senior Foreign Law Specialist
May 2016


[1] Secret Monitoring Law, 5739-1979, §§ 1, 6, Sefer HaHukim [Book of Laws] [SH] (official gazette) No. 938 p. 118, as amended, up-to-date text available in the Nevo Legal Database, at http://www.nevo.co.il (in Hebrew; by subscription), archived at https://perma.cc/EPD4-BV6R.

[2] Id. § 8(1).

[3] Id. § 8(2)–(5).

[4] Id . § 4.

[5] Id.

[6] Id. § 5.

[7] Communications (Telecommunications and Broadcasting) Law, 5782-1982, § 13, SH No. 1060 p. 216, as amended, available athttp://www.nevo.co.il, archived at https://perma.cc/D5CC-UB5B.

[8] Criminal Procedure (Enforcement Authorities–Communications Data) Law, 5768-2007, § 3, SH No. 2122 p. 72, available athttp://www.nevo.co.il, archived at https://perma.cc/Q4MZ-FPYB.

[9] Id. § 3(a).

[10] Id. § 4.

[11] General Security Service Law, 5762-2002, § 11(b), SH No. 1832 p. 179, as amended.

[12] Id. § 11(c).

[13] Order Governing the Control of Commodities and Services (Engagement in Encryption Items) (Encryption Order), 5735-1974, Kovetz HaTakanot 5735 No. 3232 p. 45, available at http://www.nevo.co.il, archived at https://perma.cc/9KKF-PVJY.

[14] Encryption Controls in Israel , Ministry of Defense, http://www.mod.gov.il/English/Encryption_Controls/ Pages/default.aspx (last visited Apr. 18, 2016), archived at https://perma.cc/X4HB-BEW2.

[15] Encryption Order § 2.

Id . §§ 4 & 6.

[17] Ministry of Defense, supra note 14.

[18] Id.

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Last Updated: 10/01/2016