Law and Judicial Records in Israel: Invalid Management and Sharing of Public Knowledge

Authors

  • Joseph Zernik Human Rights Alert NGO, Tel Aviv, Israel

DOI:

https://doi.org/10.34190/eckm.24.2.1846

Keywords:

Knowledge management, e-Government, Code is Law, Due process, Liberty, Rule of Law, Israeli courts

Abstract

Valid management and sharing of public knowledge is a critical aspect for any competent legal system and for the
safeguard of human rights. The duty of government to make the law known is commonly accepted legal norm, relative to
laws that are enacted by the legislature. Yet, how are laws, which are embedded in cyber platforms by programmers, to be
managed and shared? The problem was presented by L. Lessig as a legal theory - “Code is Law”. Lessig primarily addressed
commercial platforms that were used for sharing knowledge, claiming that such platforms effectively established new
rules, which were not enacted through any democratic process, were not explicitly stated, and might threaten
constitutional principles. E-government systems are a critical subset of such cyber platforms. Instant case study presents
data from a series of Israeli court cases, pertaining to rules that are embedded in e-government systems, which determine
tax liability, using the Tax Authority system, and valid signing and entry of criminal judgments of the courts themselves,
using Administration of Courts Net-HaMishpat system. In both cases, government agencies refused to provide any
information regarding such rules, pursuant to the Freedom of Information Act. Following lengthy court battles, such rules
have not yet been provided. The Israeli Supreme Court has avoided ruling on the issue whether software or IT system code
constitutes “information” pursuant to the Freedom of Information Act, deeming it ‘not ripe for review and decision’. The
obvious concern is that the rules, which are implemented in the respective e-government systems are out of compliance
with the publicly shared law and violate constitutional rights. In both cases, the issue is directly related to authentication
and validation of e-government systems and the knowledge they share. Such circumstances raise further concerns
regarding knowledge management and sharing - lack of integrity and dissemination of invalid public knowledge by
governments, undermining the public’s capacity to keep a watchful eye on the working of government agencies.
Particularly regarding the courts, such circumstances can undermine the rule of law and human rights. IT experts should
assume a more active role in human rights protection.

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Published

2023-09-05