Taking The Legal Route: Suing Satellite Communication Providers

145

And the war rages on. Turkey warns Israel from the latter’s response to the next Flotilla, making Turkey an active instigator of events. Hamas, reports the Intelligence and Terrorism Information Center in Israel, “initiates a media campaign against UN Secretary-General Ban Ki-moon because of his concerns regarding the flotilla. Hamas spokesmen and media accuse him of surrendering to Israeli pressure and call him responsible for the flotilla’s safety.”

Interesting to note, of course, is that Hamas cannot accuse UN Secretary-General of responsibility for misery or starvation in Gaza, because these are non-existent. There was no need previously, as the tunnel industry was estimated in the many billions. There may still be a naval blockade, but Israel has lifted almost completely any barriers to land movement into Gaza from Israel and Egypt has opened the Rafa Crossing.

Finally, all cards are face up. This is not an issue of “siege,” “blockade” or even need. Rather it is a public relations campaign, and a very successful one at that, forcing Israel to be constantly on the defensive.

Alas, Hamas is complaining since things do not proceed smoothly as before. While Israel has not responded in force against Turkey, the true instigator of these “peaceful flotillas,” Israeli NGO Shurat Hadin (Jerusalem-based Israel Law Center) “has begun to send letters placing maritime insurance companies on notice concerning the Gaza Flotilla and warning them that if they provide insurance, that they themselves will be legally liable for any future terrorist attacks perpetrated by Hamas.”

Shurat Hadin was apparently successful in “scaring off,” if to use Hamas’ phraseology, Lloyds of London, the largest insurance market in the world. Others are expected to follow suit.

Shurat Hadin has several major victories under its belt (although collection of damages seems to be a separate issue), did not stop at this notice. They warned Inmarsat, the provider of satellite communication to vessels on sea, that it exposes itself to criminal negligence and monetary lawsuits if it provides maritime telecommunication services to vessels participating in flotilla to Gaza, such as it did to the Mavi Marmara.

Inmarsat is headquartered in London and has representative offices in Singapore, Dubai and the USA (Florida and Washington, DC). As required by US law, Shurat Hadin has to advise a week prior to taking any legal action against the company.

Inmarsat confirms receipt of Shurat Hadin’s letter in its Washington DC office, but states that the only device it has on the Mavi Marmara (information which is readily available on the public ship directory) is the Inmarsat C, a device whose purpose is to report the position of the ship in case of emergency.

This international global maritime distress signal device is a requirement on all ships, passenger and cargo, over 300 tons, and is widely deployed elsewhere, also on small yachts. Its maximum data capability is 0.6 kbits/sec, too little to be what Shurat Hadin has been targeting.

Thus, if not this particular technology, what would it be? Inmarsat “often engages in humanitarian aid, sponsoring telecommunication from frontiers of disaster areas such as Haiti, China, the Asian Tsunami, Philippines, and elsewhere.”

A company spokesperson explained the communication is enabled via a satellite phone connecting by video link to one of their satellites fleets. However, he stressed, this is for land use only-it will not operate on board a rocking vessel.

As our discussion with Inmarsat continues, I learn they also have a Fleet Broadband (FBB) that connects to their new fleet of satellites, the I-4. This is the maritime version of the land device, usually a 60cm dome (anywhere between 30cm and one meter), a motorized dish that has to be bolted to compensate for the movement at sea.

Whereas the Inmarsat C is mandated by the International Maritime Organization and has to be registered, this is not so with the FBB. In fact, Inmarsat acts like an Internet Service Provider (ISP) where they sell high performance bandwidth for video streaming. There are competing maritime products, such as V-Sat and others.

Thus, we enter a new arena. Imagine a hate group, or a child pornography ring in the USA. Or imagine a person about to commit suicide or murder on live feed via the Internet. This has been the subject matter of movies and books, except reality is always more imaginable than fiction. The highest bidder for a live execution?

The US Government would then approach the major ISPs requiring them to stop such a broadcast and to disclose all the information about it (i.e. user information, user location, etc.). The law will be used to its fullest extent to ensure that a crime is not committed, or that a crime being committed is stopped in its tracks.

Supposedly, this is exactly what Shurat Hadin is trying to achieve vis-a-vis Inmarsat (and possibly other providers down the line).

Inmarsat explained that they are a wholesaler of satellite time (so is Israel, incidentally), and that they do not know who the final customers are, since they work via a secondary level of sellers. For all intents and purposes, the Israeli or American Navies may be customers of Inmarsat. (Unlikely, but let us not rule it out.)

Inmarsat sells a data package to a distribution partner who then sells it to a ship or a fleet owner. They have about 15 DPs with some 400-service providers around the globe. It is a network of impressive magnitude, structured, controlled and thus manageable. There only has to be the incentive.

Thus, technically, Inmarsat can stop “live transmission” (or even delayed transmission) from the participants of a certain flotilla aimed at breaching a naval blockade, provided it is Inmarsat’s satellites that are being used, that the necessary details are provided or available and that there is either a court order or other incentive for it to do so.

The legal system, as one learned from multiple lawsuits designed to silence the truth, works very well both ways. Thus, if Inmarsat were to stop access for paid service via its satellites just because of the threat of legal action by Shurat Hadin, it would be exposed to counter lawsuits on various other grounds.

The defendant in this case-not in the legal sphere but in the Court of Public Opinion-is no other than the State of Israel. Israel, we have long advocated, has not been fighting at all. It may have reacted, often too late, unprepared and unwisely, but it has yet to go on the offensive.

Israel has the satellite technology, the technical knowhow and means at her disposal, including legal experts of the first caliber that should enable her to fight future flotillas. For many months, Israel had been conducting hearings under a commission to examine the Maritime Incident of May 31st, 2010. Have issues of satellite communication been addressed? Were they even looked into?

Why is a NGO like Shurat Hadin the one at the forefront of the fight to save Israel? Why is not Israel, its Government and employees, fighting? According to Shurat Hadin, they are a non-profit organization that exists thanks to private donations without any state funding. Why do individual donors have to pay to achieve what the Government of Israel should be doing?

Possibly Israel does not want to win? Possibly she has given up and walks like sheep to slaughter?

Shurat Hadin has shown that there are other ways to address attacks against the Jewish State. Inmarsat has responded positively, cooperatively. Information was immediately shared and every question posed to them was answered. There was no attempt to hide information. The issue, especially when legalities are involved, becomes sensitive, and most entities, especially-but not solely- governmental ones would have immediately “declined comment.” Not so Inmarsat.

I often made the following comment to the IDF Spokesperson’s unit: A reporter who has to call one number, then a second, then a third, then a fourth and a fifth to get an answer or clarification, would write the story without going through such an ordeal. A reporter who keeps leaving messages but no one bothers to call back will eventually give up trying at all.

Unlike the IDF (and other Israeli bureaucracies), Inmarsat-faced with possible legal action-took the initiative to call right back and address every question I posed to them. This is a second lesson for Israel to learn: If you have nothing to hide, be upfront and center. It would send a very strong signal.

The more important lesson is of course the one from Shurat Hadin. The Government of Israel needs to employ the proper legal arguments in the fight against Israel’s enemies. This is not Shurat Hadin’s job; it is Israel’s. Israel’s enemies, when fed their own medicine, will become even more frustrated than Hamas is today when it does not like what the UN Secretary General says.

Reality will knock on the door and these tools are effective both ways, not only against Israel and the West. There only has to be a will to fight back, to succeed and survive. When did Israel lose this will?

In the series “Postcards from Israel,” Ari Bussel and Norma Zager invite readers throughout the world to join them as they present reports from Israel as seen by two sets of eyes: Bussel’s on the ground, Zager’s counter-point from home. Israel and the United States are inter-related – the two countries we hold dearest to our hearts – and so is this “point – counter-point” presentation that has, since 2008, become part of our lives.