The Police Do Not Get to Interpret the Law

When it emerged that the Israeli police had used spyware to break into the phones of civilians, the defence offered was that the police had acted within the law: specifically, that a wiretapping statute from 1979 had been read as permitting it. I heard the same sentence from intelligent friends, offered as though it settled something. The police interpreted the law as allowing it.

I want to explain why that sentence describes a problem rather than a defence, and why the problem is not about spyware at all.

Interpretation Is Unavoidable

Start by granting the police their premise. Laws are unclear. They are unclear in most of the cases that ever reach a court, and this is not a defect that better drafting would cure.

A law is a few pages of general language. Reality is millions of particular facts, many of them disputed. To decide whether a law applies you have to match the two, and the match is never exact: the words of the statute were written by people who could not foresee the case, in a language that was never precise to begin with. So somebody has to decide what the words mean here, in this case, for these facts. There is no version of a legal system in which nobody interprets. A law book that anticipated every case would be larger than the world it governs.

So far the police are right. Interpretation happens. The question is who is entitled to do it, and the answer is where the defence collapses.

Who Interprets in a Courtroom

In a trial, the lawyers propose interpretations, the judge chooses one, and the losing side can appeal to a higher court that will interpret again. This is the mechanism the system was built around: the legislature gives general direction, and the courts work out what it means case by case.

It is a slow and expensive mechanism, and the appeal can take years. But notice its properties. It is public: the interpretation is written down, argued in the open, and available to be criticised. It is bounded: one interpretation decides one case. It is contestable: the party on the wrong end of it has a defined path to overturn it. And it is done by people whose entire role is interpretation, who answer to nobody's operational goals.

Every one of those properties is a safeguard, and every one of them is absent when the police interpret.

Who Interprets in a Police Station

When the police decide that a statute permits something, the decision is made in private by lawyers who are employees of the organisation that wants the answer. It decides not one case but every case the police will handle under that reading, which may be thousands. Nobody outside knows the interpretation exists, so nobody can contest it, and the people it is applied to find out, if ever, years later and by accident.

And the interpreters are not neutral. A lawyer employed by the police who tells the chief that the chief may not do what the chief wants to do is a lawyer with a career problem. This is not a claim about the honesty of any individual. It is a description of the incentive, and incentives work on honest people too. The predictable output of legal advice given from inside an organisation is permission.

So the sentence the police interpreted the law as allowing it means: an interested party, in secret, granted itself the power, and applied the grant at scale before anyone could object.

The Recourse the Police Actually Had

Here is the part I find most damning. The police were not stuck. When the statute was unclear, they had exactly two legitimate moves.

They could ask a court. An organisation that intends to do something thousands of times can afford to get one ruling first, and the delay is trivial next to the scale of what follows.

Or they could ask the legislature. A statute from 1979 that does not address technology from the 2010s is a statute that needs amending, and the body that amends statutes is known and reachable.

Both routes are public. That is precisely why neither was taken. Asking would have meant saying aloud what they intended to do, and the intention would not have survived being said aloud. The private interpretation was chosen because the public one would have failed. That is not an accident of the process; it is the reason for it.

Why This Is a Question of Regime

The police are not part of the legislature. They are not part of the judiciary. They are the instrument that applies the law, and the entire design of a democratic state depends on the instrument not also deciding what the law is. An army that decided which wars were legal, or a tax office that decided what income was, would be recognised immediately as a constitutional problem. The police deciding what surveillance is permitted is the same problem wearing a uniform.

The democratic idea is that the most consequential questions about how the state may treat its citizens get settled in the open, where the citizens can see them and weigh in. An organisation that settles such a question for itself, in private, by asking its own lawyers, has not committed a technicality. It has taken a decision that belonged to the public and kept it. That the spyware was the occasion is incidental. The next occasion will be something else, and the sentence offered in defence will be the same.