By Nashwa Azzam and Amit Acco – Partners Kan-Tor & Acco |
A recent announcement by the US Embassy in Israel stated that Israel has met the Nonimmigrant Visa (NIV) Refusal Rate Requirement, which is one of the prerequisites for joining the Visa Waiver Program (VWP).
This development would enable Israeli nationals to use the Electronic System for Travel Authorization (ESTA) prior to traveling to the United States, thereby bypassing the need to obtain a US visitor visa.
However, the embassy also noted that meeting the NIV Refusal Rate Requirement of 3% is only one of several steps that Israel must take to qualify for the VWP. These additional steps include passing three laws, among other requirements.
In attempt to be included within the VWP , Israel has enacted the necessary legislation, with the final law being passed today. This marks a significant milestone in Israel’s efforts to join the VWP, though further steps may still be required before the country is officially admitted to the program.
As per Prime Minister Netanyahu’s announcement, Israel’s citizens will become eligible for visa exemption to the United States in September 2023, fulfilling the legislative requirements previously promised:
“As we promised, the legislative requirements for obtaining a visa exemption for the United States have been successfully completed”
The law that passed today provides the power for collecting and evaluating data of passengers entering or exiting Israel.
The purpose of the law is to establish a legal framework for receiving personal information from airlines about passengers on flights entering, exiting or passing through Israel. This information includes Advance Passenger Information (API) and Passenger Name Record (PNR) data, which are collected by airlines for their own purposes. The law regulates all aspects related to the receipt, storage, and use of this information.
API data includes basic details verified by the travel documents of an airline passenger, such as name, date of birth, gender, nationality, passport details, and country of origin. PNR data is more extensive and may include unverified personal information that is voluntarily provided by passengers, such as mobile phone numbers, email addresses, means of payment, travel dates, routes, baggage details, and travel history. The Israeli data center is set to include all airlines by the end of September, connecting to over 100 airlines worldwide.
The explanatory notes to the law emphasized that receiving this data in advance of a passenger’s departure from their country of origin provides clear advantages for countries, including the ability to analyze and evaluate passengers for potential risks.
Sharing a Criminal Information Between the US and Israel
Following the completion of the legislation, the Israel Police is currently establishing a system for sharing criminal information with the United States. The system will enable both countries to make up to 2,000 queries per year based on biometric fingerprints of Israelis arriving in the US or Americans arriving in Israel.
If an Israeli passenger is deemed suspicious by US authorities upon arrival or vice versa, they can send the passenger’s biometric fingerprint to the other nation police to inquire about any previous convictions for serious offenses, including security offenses, murder, espionage, and pedophilia.
Either Israeli Police or US authoerities can only give a binary answer of “yes” or “no.” If the answer is “yes,” the Israeli police can call a manned hotline to request more details. The same process applies to American citizens entering Israel.
A new system is being established within the Population Authority in collaboration with the Israel Police, aimed at enhancing border security. Every individual entering Israel for the first time will have their name run through two new Interpol databases – Tidon and Nominal. Unlike before, where only the Interpol database for stolen or lost passports was checked, the new system contains information on serious criminal alerts and a database of intelligence information. Dsmr for US nationals that arriving to Israel.
The purpose of this system is to identify any potential threats to the security of Israeli and US citizens. The inspection will be conducted at border control , and any individual appearing in the databases will be flagged for further investigation. A representative of the Population Authority in Israel will be able to consult with the police in real-time to determine whether the person poses a threat.
The implementation of this system will ensure that Israel or the US is not admitting any problematic individuals, ultimately enhancing the safety and security of the country.
In addition to the requirements above, the US also required a, reciprocity of travel, meaning that Israel will have to allow equal treatment and freedom of travel for all U.S. citizens regardless of national origin, religion, or ethnicity, including Palestinian Americans, seeking to enter or transit through Israel. The US made it specific: “This means that any person who has U.S. citizenship and holds an American passport will be able to fly to Israel on short-term visits of less than 90 days, including travel to and out of the West Bank through Ben Gurion Airport.”
The issue of reciprocity for US-Palestinian nationals entering Israel has been a topic of discussion for some time. Despite this, there is still uncertainty regarding whether Israel has met this requirement and how exactly it has been fulfilled. Additionally, there has been a lack of published regulations regarding the entry of these individuals into Israel, with Ben Gurion Airport currently not permitting their entry.
While it is unclear how Israel has met this requirement, it is important for all parties involved to continue discussions on this matter. Additionally, the publication of regulations regarding entry requirements for US-Palestinian nationals into Israel would provide clarity and guidance for those affected by this issue.
Criticism Against the Law
The new law has stirred up controversy and drawn sharp criticism from privacy experts. The new law is seen as a further encroachment on the privacy boundaries of all Israeli citizens, without any public discussion. Critics argue that there was no meaningful debate about the limits of the database, or how to safeguard citizens’ privacy and prevent violations.
One key concern is the lack of clarity surrounding the minimum amount of data required to meet the requirements of the United States. Additionally, experts are questioning why Israeli citizens are not granted more rights within the database, such as the right to access information about the processing operations performed on their data, or to know which authorities have accessed their information.
The lack of transparency and public dialogue around these issues has raised alarms among privacy advocates. As the new law comes into effect, it remains to be seen how it will impact the privacy of Israeli citizens, and whether their concerns will be adequately addressed.
Partner Amit Acco, Immigration and Privacy law specialist explains that this raises concerns about a new law that they say poses a serious threat to the privacy of passengers. The law, unlike legislation in other countries, allows Israeli security authorities to establish databases of all aviation information collected, which can be combined with other databases.
This unrestricted access to personal and sensitive information creates an unnecessary danger to the privacy of passengers, as these authorities are not subject to the same privacy protection provisions as the Tax Authority, and are not bound by them. This means that the Shin Bet, the Mossad, and the police could potentially access and transfer sensitive passenger information without any additional restrictions to protect privacy.
While preventing terrorism and maintain public security, is not in question, the lack of privacy protection provisions creates a significant risk that must be addressed. As the law goes into effect, it is imperative that steps are taken to ensure that the privacy of passengers is not unduly compromised.
One of the primary concerns raised against the law is the broad use of personal information that may have been collected under duress. The law’s provisions could potentially allow authorities to obtain sensitive personal information from individuals who may not have freely given it, creating a significant risk to their privacy and rights.
Experts warn that this could lead to serious abuses, including the unjustified use of personal information for purposes other than national security, or even the creation of blacklists or discriminatory policies. As such, it is crucial that the law’s provisions are carefully scrutinized to ensure that personal information is only collected and used for legitimate purposes, and that the rights of individuals are adequately protected.
