An amendment to the Israeli Penal Law was tabled in the Knesset last month, seeking to further restrict disclosure of information defined as a ‘security secret’.
If passed into law, the amendment will impose a seven-year prison sentence on Israelis who copy, photograph or otherwise use classified security-related information that they receive but are not authorized to see.
Such material must be turned in to the nearest police station within 48 hours of receipt or the recipient will face three years in prison.
If passed this will prove especially harsh for Israeli journalists, who depend on the use of materials they are not officially authorized to see for their daily work. As indeed do journalists worldwide.
The amendment also proposes creating a new sub-category, ‘Security Secrets’, in addition to the main category of ‘Espionage’ in the Israeli Penal Law.
Under this, Israelis disclosing classified information without authorization will be subject to a 15-year prison sentence even if they had no intention of causing damage to state security by so doing; Israelis procuring, collecting, preparing, recording or holding any classified information will face a seven-year sentence.
Israelis caught within military premises without permission, attempting to enter premises, or even ‘loitering’ outside them without a reasonable explanation, will face three years in jail.
The new amendment was proposed by MK Otniel Schneller of opposition party Kadima. Its explanatory notes cite the case of Anat Kamm, who leaked secret documents regarding high-level approval of alleged IDF crimes to journalist Uri Blau of Israeli daily Haaretz.
In 2008 Haaretz published an article by Blau based on the leaked documents, with the approval of the Israeli military censor.
Kamm, who was exposed as the source of Blau’s information following pressure on the latter by the Israeli secret police, shabac, has been charged with ‘aggravated espionage’ and her case is pending. Blau remains in self-imposed exile in London, fearing charges if he returns to Israel.
In the UK, the Official Secrets Act allows the prosecution of newspapers or journalists who publish damaging secret information leaked to them by a crown servant. If convicted, they are subject to a maximum of two years in prison or a fine.
In Israel, it has been suggested that the reason for the harsh measures against Kamm and Blau was the wish to deter Israelis from leaking information that could then be used to indict Israeli senior officials overseas. This amendment, along with the Universal Jurisdiction bill, would directly attack anyone divulging such information.
Eighteenth Knesset: Proposed law by Member of Knesset Otniel Schneller
Unofficial translation
Proposed law - Penal Law (Amendment: prohibition on use and disclosure of secret information), 2010
1. Amendment to section 113
In the Penal Law 1977 (hence ‘the main law’), in section 113
(1) In subsection (c) instead of the second part of the subsection reading ‘shall be sentenced to 7 years imprisonment’ – replace with ‘and intended by doing so to damage state security, shall be subject to 15 years imprisonment’.
(2) In subsection (d)(3), instead of ‘section 113a’ replace with ‘Item d 1’.
(3) In subsection (e), after ‘in accordance with subsection (c)’ – add ‘or section 115b’.2. Annulment of section 113a
Section 113a of the main law is struck off.3. Amendment to section 115
In section 115 of the main law
(1) Replace existing title with – ‘entry into a military location for purposes of espionage’.
(2) Instead of the second part reading ‘shall be sentenced to 3 years imprisonment – replace with ‘and intended by doing so to damage state security, shall be subject to 15 years imprisonment’.
(3) After subsection (b), add – ‘(c) The provisions of section (b) shall also apply to section 115c’.4. Addition of Item d 1 and sections 115a to 115c
After section 115 of the main law add –‘Item d 1: Security secrets
Disclosure of secret information
115a. A person who discloses secret information without authorisation to do so shall be subject to 15 years imprisonment.
Collection of secret information
115b. A person who procures[?Heb ‘hissig’, got hold of, not bought], collects, prepares, records or holds secret information without authorisation to do so shall be subject to 7 years imprisonment.
Entry into a military location
115c. A person who enters a restricted location, tries to infiltrate it, stays within it, tries to discover information about its structure or function, or loiters in its vicinity without a reasonable explanation, without authorisation to do so; and a person who tries to disrupt or mislead an official or guard of a restricted location – shall be subject to 3 years imprisonment.’5. Amendment to section 116
In section 116 of the main law, after ‘according to this Item’ – add ‘and according to Item d’.6. Addition of section 116a
After section 116 of the main law add –‘Handling of secret information by unauthorised persons
116a.
(a) A person who has received secret information that s/he is not authorised to receive, shall not copy or photograph it and shall not make use of it in any way not detailed in sections 115a and 115b. A person violating this subsection shall be subject to 7 years imprisonment.
(b) A person who has received secret information shall submit it to a police station at the earliest opportunity, and no later than forty eight hours from the moment of receipt. A person violating this subsection shall be subject to 3 years imprisonment.’Explanatory notes
Investigation of an event in which a [female] soldier took classified documents without authorisation from the office of her commander, held them without authorisation and transferred them to a journalist – has exposed an essential difficulty in the Penal Law 1977 (hence the Penal Law): the chapter dealing with illegal handling of secret security information is Item d (of Chapter G) of the Penal Law whose title is ‘Espionage’, but the violations in it deal both with disclosure of information to an enemy or a ‘foreign agent’ and with disclosure of information within Israel, when the disclosing person has no ‘intention of damaging state security’. This has led to a gap in the colloquial use of the term ‘espionage’ and the legal use of [the term], and an inappropriate mixing of different types of violators acting from different motivations has occurred.
The objective of this proposed law is to distinguish between two types of violations and divide them into two different items in the Penal Law: violations in which a person discloses secret security information with the intention of harming state security and certainly in cases in which he discloses the information to hostile elements that endanger the state. Such violations will remain, in accordance with the proposed amendments, under the title ‘Item d: Espionage’. A second type of violations involves those dealing with illegal disclosure of secret security information when the disclosing person did not intend to damage state security. Such violations shall be moved to a new paragraph: ‘Item d 1: Security secrets’.
The proposed law also adds an additional violation to the Penal Law, proposed section 116a, which involves handling of secret information received by unauthorised persons. Subsection (a) is intended to add to the current prohibitions (the prohibition on disclosure of information and the prohibition on collection, recording, preparation and holding of secret information), and the violation prohibits copying of the information or photographing it in any way, and any use that was not already explicitly forbidden in other articles of the law. Subsection (b) of the proposed article sets out an obligation to return the secret information to the police and carries a penalty.
Public awareness of protection of state secrets and prevention of their use for prohibited ends are an important part of protection of the security, resilience and existence of the state.
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