Constitutional law offers a convenient legal framework that enables policymakers, courts and the public at large to reach decisions in complex situations. Managing the Covid-19 pandemic required fast decision-making in Israel and around the globe, under conditions of extreme uncertainty, resulting in emergency measures that violated human rights, including privacy. One of the measures undertaken in Israel was the collection and processing of citizens’ location data, by the General Security Services (Shin Bet), for the purpose of contact tracing, i.e., identifying people who were in close proximity to people who tested positive. The government described the decision to use the GSS as inevitable. In Knesset hearings and in High Court of Justice litigation that followed, the decision to use the GSS was presented as the result of balancing privacy with the acute need to respond to the pandemic, a need translated by some of the Justices as the sacred right to life. This kind of framing is deeply rooted in the Israeli balancing discourse
In this talk, I will examine the juxtaposition between privacy and life, and argue that understanding the limits of constitutional engineering opens the door to a more cautious approach, which makes room for a different kind of engineering: privacy engineering, namely, privacy by design. Accordingly, the contact tracing technology should be designed in a manner that minimizes the harm to privacy ex ante. I will discuss guidelines for such technologies.