During the hearing, the State admitted that the current order is faulty. The Justices criticized the outline of the pilot program for the biometric database and the Interior Ministry’s rush to advance it. The petition was rejected after the Interior Ministry accepted the Court’s suggestion and agreed to amend the order establishing the pilot.
This morning (July 23), the High Court of Justice held a hearing on a petition seeking the annulment of a law that would establish a governmental biometric database and the cancellation of its two-year pilot program. In the hearing, Justices Naor, Meltzer, and Amit voiced harsh criticism of the State’s preparation for the biometric database pilot.
Similar to the claim presented by the petitioners – the Association for Civil Rights in Israel (ACRI), the Movement for Digital Rights, Professor Karin Nahon of the University of Washington and Hebrew University, and Doron Ofek, an information security expert – the Justices also thought that the order establishing the biometric database was formulated in a way that does not enable real examination. The Justices ruled that the pilot description must include clear criteria for success and failure and examine the very necessity of a central database and alternatives to it. The Justices further noted the importance of a review by an external and independent source.
The Justices recommended that the Minister of Interior re-examine the order establishing the pilot program and amend it so that the experiment would be real and answer the question whether the database is indeed necessary or whether other, less dangerous and injurious alternatives might suffice. After the State Representative accepted the Court’s recommendation, the Court ruled that the petitioners’ claims are currently premature. On this ground, it was decided to reject the petition while maintaining the petitioners’ rights to present their claims in the future.
During the hearing, the State Representative declared that the Interior Ministry intends to continue to ask Israeli residents to provide their fingerprints for a temporary database, voluntarily, not within the framework of the pilot program and regardless of the amended order.
According to Association for Civil Rights in Israel (ACRI) Attorney Avner Pinchuk: “The State in fact accepted the position of the petitioners and the Justices, according to which the order establishing the biometric database is illegal and does not enable an examination of the database’s necessity. The Interior Ministry’s intention to establish a database even before this essential flaw is amended demonstrates the hastiness and aggression that have characterized this dangerous project since its inception. The Court today criticized the Interior Ministry for this kind of behavior and maintained our right to return and present our claims against the database and against the pilot program. Should the Ministry of Interior decide in the future to act against the law – we reserve the right to continue our actions through legal channels.”
According to the petition, “a centralized database of the entire population’s biometric information is a sensitive and powerful resource that provides an unprecedented mechanism for surveillance and control. It delivers a heavy and needless blow to the rights of the individual to dignity, liberty and privacy.” The petitioners maintain that a biometric identification system can work without a central database, which constitutes an unnecessary invasion of privacy. Other countries, such as the Netherlands, Germany, and the UK, have introduced or are introducing biometric identification systems that avoid the creation of a central databank.
The Interior Ministry has been working on a plan to introduce identification cards that incorporate biometric identification (including fingerprints and facial scans) as a means of preventing identification forgery since the technology became available. In 2007, the Interior Ministry backtracked on its prior policy and began pushing for the creation of a central database alongside the new ID cards. In the wake of public outcry against the biometric database law, which passed in the Knesset in 2009, a compromise was reached under which the establishment of a central database was conditioned upon the success of a two-year “voluntary pilot study” designed to evaluate the need for such a database and the scope of the information collected by it.
According to the petitioners, however, the pilot is only intended to give the appearance of a study, the results of which are in fact predetermined. The Interior Ministry and the Population Authority “designed” the pilot, are charged with executing it, and are authorized to determine its “success.” Although the Interior Ministry did ultimately submit a plan for the pilot study outlining the parameters that would measure its success, the plan omits the study of alternatives– some of which were even accepted by experts of the Interior Ministry – that would accomplish the goal of preventing forgery without the compilation of a massive centralized database (such as “privacy by design” methodologies which reduce the risks of information theft or misuse).