The NSO Group stand at the annual European Police Congress in Berlin

Israel must update arms export laws after NSO leak, experts say

Israeli tech company's Pegasus spyware is defined as weapon by Jerusalem, and its sale abroad therefore requires license from Defense Ministry; 2007 legislation made Defense Export Controls Agency (DECA) responsible for screening process all military exports undergo

Daniel Sonnenfeld/The Media Line |
Published: 07.24.21, 09:13
A new scandal engulfed the Israeli cyber company NSO Group after leaked information analyzed by NGOs and journalists suggested that its flagship spyware software, Pegasus, was used to target journalists, lawyers and activists by governments around the world, the information exposed.
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  • Pegasus reportedly enables its user to obtain personal data such as the messages and call records held on a cell phone. It also allows an operator that has successfully infiltrated into a target’s device to enable its microphone and cameras, as well as record phone calls.
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    A man reads at a stand of the NSO Group Technologies, an Israeli technology firm known for its Pegasus spyware enabling the remote surveillance of smartphones, at the annual European Police Congress in Berlin
    A man reads at a stand of the NSO Group Technologies, an Israeli technology firm known for its Pegasus spyware enabling the remote surveillance of smartphones, at the annual European Police Congress in Berlin
    The NSO Group stand at the annual European Police Congress in Berlin
    (Photo: Reuters)
    This latest reveal raises grave concerns regarding the abuse of this powerful tool by governments worldwide to silence opposition voices, reveal journalistic sources and more.
    Pegasus is defined as a weapon by the Israeli government, and its export therefore requires a license from the Ministry of Defense. Legislation in 2007 made DECA, the Defense Export Controls Agency, responsible for the screening process all military exports must go through before trade can commence.
    So far, DECA’s screening of Pegasus has withstood scrutiny; in July 2020, an Israeli court rejected an Amnesty International appeal to revoke the software’s license, and stated, according to the Israeli business newspaper Globes, that the governmental licensing procedure is strict, and that the Defense Ministry continues to supervise Israeli exporters, supervision which can lead to licenses being revoked in cases where human rights abuses are discovered.
    However, Itay Mack, an Israeli lawyer and long-time activist for stricter regulation of arms exports, explains that the issue isn’t with DECA, but with the legislation that governs its decisions. Not accounting for specific Israeli interests, DECA withholds licensing “only when there’s an embargo [imposed by] the UN Security Council,” Mack says.
    Without a United Nations decision – a rare occurrence, he explains, because of the need for alignment of the different superpowers’ agendas – DECA is acting in accordance with the law when allowing Israeli firms to continue to sell their wares to dubious clients.
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    Congress party workers shout slogans during a protest accusing Prime Minister Narendra ModiגÄôs government of using military-grade malware from Israel-based NSO Group to spy on political opponents
    Congress party workers shout slogans during a protest accusing Prime Minister Narendra ModiגÄôs government of using military-grade malware from Israel-based NSO Group to spy on political opponents
    Indian Congress party staffers attend a protest accusing Prime Minister Narendra Modi's government of using military-grade malware from NSO to spy on political opponents
    (Photo: AP)
    Rabbi Avidan Freedman, one of the founders of the Yanshuf organization, which “advocates for moral limits on Israel’s weapons exports,” strengthens Mack’s position.
    “There is supervision, there’s DECA that supervises … and when considering a license, they can take into account security and diplomatic matters, but the issue of human rights abuses isn’t mentioned in the bill at all. International treaties and obligations are mentioned, but human rights accords aren’t mentioned specifically,” he says.
    The Defense Ministry says in response: “The State of Israel regulates marketing and export of cyber products in accordance with the 2007 Defense Export Controls Act. Control lists are based on the Wassenaar Arrangement, and include additional items.”
    The Wassenaar Arrangement is a post-Cold War international agreement that isn’t legally binding, which seeks to ensure more responsible and transparent arms trade.
    “Policy decisions take into account national security and strategic considerations, which include adherence to international arrangements,” the statement also said.
    “As a matter of policy, the State of Israel approves the export of cyber products exclusively to governmental entities, for lawful use, and only for the purpose of preventing and investigating crime and counterterrorism, under end-use /end-user certificates provided by the acquiring government. In cases where exported items are used in violation of export licenses or end-use certificates, appropriate measures are taken.”
    Mack says that a key factor behind Israel’s willingness to allow its companies to trade with less-than-appetizing partners is an ambition to forge international alliances, which he says is an attitude that consistently fails to yield results.
    “The diplomatic benefits are negligible because, at the end of the day, the countries vote [regarding UN resolutions] according to their own interests … and Israel is disappointed time and time again,” he says, adding that the support of some of these regimes should be regarded as a cause for embarrassment, instead of something to strive for.
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    NSO headquarters in Herzliya
    NSO headquarters in Herzliya
    NSO headquarters in Herzliya
    (Photo: Orel Cohen)
    Prof. Eytan Gilboa of Bar-Ilan University, however, says that diplomatic considerations are not a part of Israel’s policy regarding arms exports.
    Israel “isn’t selling weapons for diplomatic gains … quite the contrary, as you can see, these sales are a cause for difficulties in the diplomatic arena,” Gilboa says. He says that the country’s arms sales are instead driven solely by security considerations.
    “Israel sells weapons because it would otherwise be impossible for it to maintain its weapons industry,” a vital part of the country’s defense structure, Gilboa says.
    Selling Israel’s developments also allows it to arm potential strategic allies, seen as critical to its security. Gilboa points to the Gulf States – Saudi Arabia, the United Arab Emirates and Bahrain have all reportedly purchased NSO’s Pegasus – as examples.
    Israel’s allies in the Gulf are vitally important for its defensive strategy vis-à-vis Iran, which it believes poses an existential threat. Empowering them thus strengthens Israel’s security. We are living in an age of political realism, he says, one in which practical interests supersede idealistically motivated action, and this is true for Western countries, as well as for Israel.
    Alongside their call for greater limitations, both Mack and Freedman urge greater transparency, stressing that Israelis should be made aware of decisions made by the state on such controversial issues, as well as the reasons behind them.
    “This thing is being done out of the public eye and without a public discussion on the matter. The people sitting there [on the committees] are set in their ways, and they are acting in accordance with policies created during the ‘50s,” Mack said. He added that there are a fair number of Israeli Knesset members looking to change the law, but the Defense and Foreign Affairs ministries are currently blocking the way forward.
    “We have so many good things to export to the world,” said Freedman, listing greentech innovations sold in African countries, fintech startups and more.
    “But with our other hand we export these things,” he says, “I don’t think that there’s any Israeli that wants to think that our international alliances are built on this.”
    Gilboa, in turn, also believes that greater supervision would be beneficial, suggesting, however, that a parliamentary body be formed, which would be responsible not only for supervising the licensing procedure, but also for ongoing oversight of the uses to which Israeli military technology is being put.
    In a statement to the media following the Sunday reveal, NSO Group said that it “firmly denies false claims made in your report which many of them are uncorroborated theories that raise serious doubts about the reliability of your sources, as well as the basis of your story.”
    NSO says that it only sells its tools to vetted government agencies. It also denied a connection to the murder of Saudi journalist Jamal Khashoggi in 2018.
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    Slain Saudi journalist Jamal Khashoggi believed tracked by NSO device
    Slain Saudi journalist Jamal Khashoggi believed tracked by NSO device
    Slain Saudi journalist Jamal Khashoggi is believed to have been tracked by NSO spyware
    (Photo: AP)
    The company said: “NSO Group’s technologies have helped prevent terror attacks, gun violence, car explosions and suicide bombings. The technologies are also being used every day to break up pedophilia-, sex-, and drug-trafficking rings, locate missing and kidnapped children, locate survivors trapped under collapsed buildings, and protect airspace against disruptive penetration by dangerous drones.”
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