Since the outbreak of the Israel-Hamas war on October 7, the Israeli government has imposed a series of restrictions on the freedom of expression and has impinged still further on citizens’ privacy. It has done so using emergency war-time regulations, special edicts and simply by tightening policy enforcement – mainly through the police – on the ground. It is hard to see much justification for most of these limitations – even if Israel is at war. It’s merely a case of the government trying its luck – portraying any criticism of the government’s policy as treacherous and expanding the state’s access to the private data of Israeli citizens even when it has nothing to do with the security situation.

Police, for example, have barred several planned demonstrations against the war and even arrested citizens who were planning to protest, almost all of them Arabs. The police’s overzealousness can also be seen in its handling of the case of Yael Abadi-Reiss – an archaeologist from Omer – who was arrested for spray-painting the number “1,400” on the sidewalk outside the home of Likud MK Shalom Danino, who lives in the same town, as a protest against the number of people killed in the October 7 massacre. Abadi-Reiss was arrested in her home and held overnight and was even asked by police investigators which party she voted for in the last election and what she was doing on the morning of October 7. Not content with holding Abadi-Reiss overnight, police asked the court to extend her remand by seven days. Instead, the court sent her to house arrest, which also appears excessive compared to the crime she is accused of. “This series of events is reminiscent of a process that happened in the United States during the McCarthy period,” former judge Saviona Rotlevy wrote in an opinion article in Haaretz. “Suppressing the right of protest and the right to admonish elected officials for their policies could lead to the silent death of Israeli democracy.”

Haaretz Gidi Weitz wrote this week that State Prosecutor Amit Eisman sent a sharply worded letter to the head of the police’s Department of Investigations and Intelligence, Maj. Gen. Yigal Ben-Shalom, on this matter. In it, Eisman warned that the arrest of Abad-Reiss – as well as some of the other examples of the police’s conduct toward protesting citizens that will be detailed below – are undermining the rule of law.

It is important to remember that, even if some of these measures are necessary during wartime, they are certainly not worthy thereafter. Are we about to witness the introduction of limitations as emergency regulations and then see them turned into preliminary legislation? Might what be an urgent necessity during war become the norm and end up as the working assumption?

The following are some examples:

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Arrested for Posting on Social Media

Meir Baruchin, a civics and history teacher, posted left-wing views on Facebook. Four days later, he was arrested and then released under restrictions. The complaint against him was filed by the Petah Tikva Municipality, which also fired him from his position. The complaint was based on posts he wrote, most of them before the war broke out on October 7.

Baruchin often posts about Palestinians killed in the territories, the vast majority of which are not reported in the Israeli media. He writes about young children who were “born into the occupation” and who died in artillery shelling by “our fine boys.” He signs his posts by saying, “None of this interests the Jewish majority. This is the routine for Palestinians. #Nakba.”

Among the posts cited in the complaints was one in which Baruchin described a car-ramming terror attack as an act that comes from the desperation and humiliation of the Palestinian terrorist. There is also a screenshot from the WhatsApp group of teachers in Petah Tikvah, in which Baruchin argues that IDF have raped Palestinian women in the past. His posts are not easy to read, especially for Israelis at the current time, but they are from representing a criminal offense.

The police prosecutor argues in court that Baruchin had adopted a false narrative, whereby terror is a response to Israel’s actions and not a desire to murder Jews. This raises the question of why the police believe that it’s their job to determine what is the proper historical narrative? Police claim that Baruchin’s behavior could lead to a disturbance of the peace and even cited a rarely used clause called “disclosing an intent to commit treason,” which is punishable by up to 10 years in prison. But what has that got to do with anything that Baruchin wrote?

Crimes connected to freedom of expression can only be investigated with the approval of the state prosecutor and, since the prosecution did not give police permission to look into Baruchin’s posts, it found the obscure “disclosing an intent to commit treason” clause.

Baruchin, needless to say, vehemently condemned the murderous Hamas attacks of October 7. Why, then, did the court decide that his posts about the suffering that the Palestinian side is experiencing are worthy of a remand extension? And why only release him on bail and on condition that he not use the internet for 15 days?

“One of the characteristics of wartime is that people tend to overestimate the dangers,” says civil rights expert Prof. Adam Shinar from the Reichman University Law School. “In normal times, we would just ignore things or assess them differently. “A society that feels threatened tends to fight with everything it’s got; it marks ‘enemies’ and traitors,’ domestic and foreign. Because of the tendency to overestimate dangers, there is also an increased chance of making a mistake with these assessments and becoming overzealous, to define any act of criticism as treason. The police, the prosecution and the courts are not immune to these tendencies, because they fall into line with the patriotic public sentiment and are also guilty of failing to protect freedom of expression.”

Arab citizens of Israel have also been arrested. One of the more absurd cases was the arrest of an Arab teacher in the northern city of Harish. She was taken away for questioning in the middle of the school day because five years ago she posted a photograph on Facebook in which she was holding a scarf in the colors of the Palestinian flag.

“One of the characteristics of wartime is that people tend to overestimate the dangers,” says civil rights expert Prof. Shinar. “In normal times, we would just ignore things or assess them differently. “A society that feels threatened tends to fight with everything it’s got; it marks ‘enemies’ and traitors,’ domestic and foreign".

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Citizenship Revoked with No Legal Process

In early November, the Interior Ministry published for public comments a memorandum of law proposing that the interior minister be afforded the authority to revoke the Israeli citizenship of anyone convicted of identifying with a terrorist organization and inciting terror during the war. This would grant the state the power to revoke the citizenship of anyone praising Hamas on Facebook or displaying the organization’s symbols.

Until now, Israel could only revoke citizenship with the permission of a district court judge and only for the serious crimes of treason and supporting terrorism – giving a sermon in a mosque, for example, which calls for congregants to commit terror attacks. The memorandum of law will allow the state to do so for less serious crimes and without any legal process at all.

“According to international law, Israel is obligated to prevent a situation whereby someone becomes stateless,” says Hagar Schechter, an attorney working for the Association for Civil Rights in Israel. “Stateless people are not recognized by any country and, formally, they don’t exist. They have no rights and they are illegal residents wherever they go. The legal system in Israel allows for citizenship to be revoked from someone who has committed a serious act of terror and only with the court’s approval. Revoking someone’s citizenship for a speech crime is unacceptable and unprecedented in a democratic country. It also opens up the possibility of selective enforcement since the state would never even think about revoking the citizenship of a Jewish Israeli for a speech crime.”

Shinar does not believe that the legislation will be approved and thinks that it, first and foremost, a nod and a wink to the government’s political base. “It is inconceivable that the power to revoke somebody’s citizenship, which is a very extreme measure, will be susceptible to political bargaining. It must not be in the hands of a civil servant or a minister; only a district court should have that power. The interior minister can draw up a request to have someone’s citizenship revoked – but no more than that. When an actress posts a story on Instagram that perhaps could be interpreted as supporting Hamas, it can be considered incitement to violence or identifying with a hostile enemy organization – but it’s not an act of terrorism and not something for which the state should revoke her citizenship.”

"Revoking someone’s citizenship for a speech crime is unacceptable and unprecedented in a democratic country," says Hagar Schechter, an attorney working for the Association for Civil Rights in Israel. "It also opens up the possibility of selective enforcement since the state would never even think about revoking the citizenship of a Jewish Israeli for a speech crime.”

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A Ban on Demonstrations

War is not a reason to stop people demonstrating. Wars, especially the current one, manufacture a lot of reasons for protests – whether it’s over the failings of the government, calling for a speedy agreement over the release of Israeli hostages or urging the government to end hostilities as rapidly as possible. Freedom of expression, even when opposing views infuriate us, and the right of the public to demonstrate and protest are fundamental rights in a democracy.

On October 27, the police announced that “during the course of the war, we will not allow demonstrations to take place if they are protests on political, diplomatic or security matters.” The announcement came after plans were unveiled for a rally outside the Caesarea home of Prime Minister Benjamin Netanyahu, calling on him to be ousted from power. In response, the president of the Association for Civil Rights in Israel, attorney Dan Yakir, asked Attorney General Gali Baharav-Miara to remind the police that they are obligated to allow Israelis to demonstrate – even during a War. 

“This policy is patently illegal and was issued without authority,” Yakir says with regard to the ban on political demonstrations. “The police cannot take into consideration the subject of the demonstration or its content when deciding whether to approve it. A demonstration calling for the release of the hostages falls within the consensus, but a rally against the government’s policies or against military action in the Gaza Strip is not. Moreover, the police are obligated to protect the protestors from anyone who tries to harm them.” Yakir was referring, of course, to the not-uncommon occasions when demonstrators have been attacked by passersby who disagreed with them and when police failed to protect the victims.

Public pressure forced the police to reverse their decision with regard to the demonstration in Caesarea. Since then, however, police conduct shows very little tolerance toward protestors, especially those demonstrating against the current government’s policy or who have unconventional views.

Since the start of the war, police have prevented Arabs from demonstrating. It started with the outrageous comments by Police Commissioner Kobi Shabtai against Arab citizens of Israel who wanted to hold vigil in solidarity with the people of Gaza who have been killed and injured in the war. On October 17, Shabtai was quoted as saying on the police’s Arabic-language accounts on social media platforms X (formerly Twitter) and TikTok that “Anyone who wants to identify with Gaza is invited to do so. I will put them on a bus that will take them there right now.”

The police have banned demonstrations against the war in the Arab cities of Sahknin and Umm el-Fahm, arguing that they could reasonably be expected to lead to significant disturbances and even rioting. The organizers appealed against the decision in the Supreme Court, which ruled on November 8 that “notwithstanding the lofty place of the right to protest and assemble, the complex reality in which we find ourselves must influence the way that we balance these rights.”

Justices Yitzhak Amit, Yael Willner and Ruth Ronnen accepted the police’s argument that it did not have the personnel to maintain order in areas that under threat of rocket fire from Lebanon and, instead, noted that the police had undertaken not to apply their ruling to demonstrations in general but, rather, to judge each proposed demonstration on its merits.

The very next day, that undertaking was put to the test when several members of the Higher Arab Monitoring Committee were detained for questioning after seeking permission to start a vigil in Nazareth calling for a ceasefire.

According to the police, the vigil was an illegal assembly that “could have led to incitement and a public disturbance.” The Police Ordinance, however, dictates that a vigil or a protest of five people or fewer does not require a permit. “Protests that do not feature speeches (as opposed to chants and signs) of a political nature do not need a police permit, either in advance or while they are taking place – especially if it’s a small number of people at a vigil,” explains Anne Suciu, an attorney who works with the Association for Civil Rights in Israel.

“If the police suspect that ‘something’ could happen,” Shinar points out, “it is invited to attend and to deal with any disturbances, if and when they happen. Instead, they prohibit protest vigils that do not even require a permit. Freedom of expression is especially important during times of war. You can’t prevent freedom of expression ahead of time just because of concern that does not even come close to certainty that something could happen. I am concerned that this is a discriminatory policy. When it comes to Jews or rightists, a permit to demonstrate is issued or there’s no interference; when it comes to Arabs or leftists, the police deny any request for a permit.”

Does the High Court ruling about demonstrations not give the police a free hand?

“It’s a worrying ruling. It may be written in very cautious language, but one cannot escape the feeling that it will be used as a precedent for any war-time demonstration – especially one protesting against it.”

On November 18, the Arab public was allowed to demonstrate for the first time since the war broke out. The protest, which was organized by Hadash, called for a ceasefire in Gaza and the return of the Israeli hostages. It was only approved after organizers filed a High Court petition and after the justices pressured both sides to reach a compromise. “It is very important that the protest takes place,” said Justice Amit, “in order to lift the cloud of refusing to permit protests by let the Arab sector and that side of the map.”

The police refused to allow the demonstration to take place in downtown Tel Aviv, arguing that it would harm the sensitivities of the hostages’ families and people evacuated from the south. In the end, the demonstration was held on the beachfront boardwalk.

The day after the Nazareth rally, demonstrations were held in Tel Aviv and Jerusalem to protest the restriction of freedom of expression. Both were forcefully dispersed and in Tel Aviv 18 people were arrested. The local police chief station told protestors, “You will not demonstrate in front of our station. You’re preventing officers from protecting the city.” Asked by journalist Haggai Matar why police were allowing demonstrations to take place in other parts of the city on the same day, including one by settlers calling for the expulsion of Palestinians from Gaza and the reestablishment of Israeli settlements there, police said that the question was “not legitimate.”

In Jerusalem, one protester was arrested and four needed medical treatment after being told by police that, “There will be no protest here. Try us. There will be beatings.” The protestors were trying to set up a quiet vigil ahead of a hearing for Meir Baruchin, the adjacent magistrate’s court.

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Shutting Down Media Outlets Without Legal Oversight

Communications Minister Shlomo Karhi promoted emergency regulations allowing him to close down a media outlet during war time. The regulations were ostensibly aimed at halting the broadcasts of Al Jazeera from Israel but would in fact allow the government to close any media outlet for the vague reasons of harming national security, the public or even national morale. Closure would be immediate, without any kind of hearing and without the need for a court order or approval by anyone from the justice system.

Following public criticism and amendments insisted upon by the attorney general, Karhi presented a watered-down version of the regulations that only apply to foreign news organizations and only if the government can prove that there has been tangible and significant harm to national security. These regulations, which were also approved by the cabinet and the attorney general, do not require any legal oversight. Instead, all it takes is the approval of the defense minister and the support of the security establishment. Last week, Karhi also sent out directions to shut down the Israeli operations of Lebanese satellite television channel Al Mayadeen, which is identified with Hezbollah and which can be viewed in Israel with a satellite dish. The cabinet, with the backing of the security establishment, approved the closure of Al Mayadeen.

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Under Cover of Shock: Changing the Biometric Database Law

On November 9, the Knesset approved an emergency amendment to the Biometric Database Law, which will allow the transfer of information stored in the database to the security services, who will then be able to retain this data as an independent database. This must be done with the privacy and security measures the law stipulates about the national biometric database. Until this amendment was approved, if police wanted to confirm someone’s identity, they would send fingerprints or a photograph of the face to the database and receive information about matches. They were not granted access to the data itself due to exacting security protocols put in place to ensure that there was no improper use of the database.

Now, the situation has changed. It started as an emergency measure passed during the first week of the war, with the very worthy and urgent need to use fingerprints and facial-recognition software to help identify victims of the October 7 massacre. But when the emergency regulation was passed for one year, the biometric information of all of the missing and kidnapped Israelis had already been collected by the state. This legislation, therefore, merely prepares the ground for future use. Any of the victims who have not yet been identified will probably not be identified using information from the national biometric database; instead, they will most likely be determined by analyzing their DNA from blood or other tissue and looking for a match, perhaps even from a relative, in one of the Israeli HMOs.

Zvi Dvir, from the Movement for Digital Rights, told the Knesset committee dealing with the biometric database that, “We need a weighty justification for this legislation. We also need an explanation – one that relatives of the victims who have been identified should also be given – as to what information exactly helped to identify them. Was it fingerprints, facial photographs or something else? The law memorandum talks about 100 bodies being identified using the biometric database, but it is unclear how and whether there were other methods used for identification. There must be an obligation for future reporting.”

Committee chair, MK Hanoch Milwidsky (Likud) responded to the question about future use of this law. “It is factually incorrect to say that there is no need for this now. It’s incorrect with eight exclamation points and I will not say any more because it is classified.” The current need was partially explained at a meeting held behind closed doors. Even if the intention is to use the database to identify bodies that may be discovered at a later stage inside Gaza – like in the cases of Yehudit Weiss and Noa Marciano – relevant information about them was collected at the outset of the war.

In a conversation with Shomrim, Dvir added that some of the current legislative amendments are taking advantage of the situation to turn back the clock. “The authority that runs the biometric database wants to overturn the ruling that it should not contain fingerprints and it wants to stop the process of Israeli citizens’ fingerprints being removed from the database. In May 2022, a representative of the Interior Ministry vowed that the state would stop collecting fingerprints in the national database. Since then, the default for anyone who has received or renewed their identity card is that their fingerprints are not stored in the database, just on the ID card.”

And what happens if I gave my fingerprints to the biometric database in the past, but when I came to renew my passport last year I wasn’t specifically asked if I wanted them to be stored?

“They should have been deleted. According to the law memorandum, last year one million fingerprint records were deleted from the database. The amendment changes the legal situation and makes it worse than it was in the past. Now, you will not be given a choice as to whether your fingerprints are retained or only kept on the ID card. The state decides for you that your fingerprints will automatically be entered into the national database.”

What for? Anyone who wants to renew their passport or ID card is obviously a living person. They are not going to be one the people killed or kidnapped on October 7, who are the ostensible reason for the emergency regulation.

“And that’s why it’s not clear why they won’t let each citizen decide if they want their fingerprints to be retained in the national database, in case there’s an earthquake or they are kidnapped, God forbid. This is the doctrine of shock: they are using the terrible tragedy of that Black Saturday to lay the groundwork for future legislation that will allow the biometric database to be used to recognize unidentifiable bodies.”

One person who sounded a note of warning at the meeting was the committee’s legal advisor, Nira Lamay Rachlevsky. “This is a complex emergency regulation that we’re trying to finalize in a single meeting,” she said. “Things are being brought up that were not in the emergency regulation and they are not being properly discussed. This is an extremely rushed legal process. The government can extend the emergency regulation and give us time to breathe. I hope that there will be an in-depth discussion.” Despite Milwidsky’s promise that there would be, the outcome is known.

The amendment changes the legal situation and makes it worse than it was in the past. Now, you will not be given a choice as to whether your fingerprints are retained or only kept on the ID card,” says Zvi Dvir, from the Movement for Digital Rights.

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Accessing Private Cameras

The Defense Ministry is advancing a legal memorandum that would allow the IDF and the Shin Bet to access as “stationary camera” – that is, a private security camera connected to the internet – and to retrieve, corrupt or delete information from it, without permission and without the knowledge of the owner – and without needing a court order. This power is designed to be used in situations where the information could endanger national security or operational activity and that the measure is needed “immediately and urgently.” The Shin Bet can also obtain information about communications between computers connected to the camera, without it being considered wiretapping. The only supervision that exists is a general report to the Knesset Foreign Affairs and Defense Committee. The owners of the camera, as already mentioned, will not be notified at all.

Who, then, will determine what constitutes a threat to national security and what “immediate and urgent” means? And what is the justification for this request, which could lead to the extortion of people filmed, to the destruction of evidence of illegal activity by the security forces or to the misuse of the material gathered? The reasoning behind the memorandum, which is an extension of the emergency regulations introduced in early October, talks about the fact that these cameras are often not sufficiently secure – that the password has not been changed since the system was purchased or that there no password protection at all – and since they often have views of public areas or sensitive installations, the enemy could use them to gather information. But the cameras were recording sensitive sites before the war and no one thought it was a problem.

“This is the kind of invasiveness that has no place in a democratic of laws,” Dvir says. “In terms of technology, there is not a large gap between hacking into a computer to delete security footage and hacking into a computer to conduct covert surveillance. Why is there a need to access someone’s computer without their knowledge? According to the existing law, covert searches – and that includes covert access to a computer – is something that only the Shin Bet is allowed to do, and for security purposes only – and to do so the Shin Bet has to get written approval in advance from the prime minister.”

How could the state do things differently?

“Firstly, by approaching the camera owner personally and warning them about the vulnerability. They can be located by the Israeli-Palestinian address and offered training about cybersecurity. That’s how the defense establishment’s cyber units always deal with businesses if their routine surveys show a vulnerability or if they get a report. They don’t wait for hackers to break in; they take the initiative and contact the owners.

“Secondly, if the owner cannot be located or refuses to deal with the problem, the internet service provider can be ordered to take the cameras offline. That is much more proportionate damage compared to the powers that the memorandum proposes. The defense establishment wants to close a chink in the cybersecurity armor with a sledgehammer instead of using a surgeon’s knife.”

The memorandum defines in very vague terms how the personal data collected will be stored and requests that the emergency regulations be extended for an additional six months, which the Knesset will have the power to extend for another six months. The memorandum was closed for public comment on November 11, five days after publication.