However, the aforesaid establishes the determination that a person has no right with respect to copies of his computer material, but it does not negate a different argument according to which the computer material, whether the original or its copy, can, in certain cases, meet the definition of (digital) property, in addition to being (digital) investigative material.
To the question "whether the recovery kernels found on the applicant's computer are 'property located in Israel', the Honorable Court of First Instance answered in the negative (see chapter 10 of the decision).
- After considering this, I believe that this is a complex and complicated issue that has faces here and there. My opinion is that the restoration nuclei, being a separate and independent tool that has the power to bring about the takeover of the virtual asset, has property elements that cannot be ignored. This determination will be based, inter alia, on my reference to the reasoning of the trial court, which, as stated, reached the opposite conclusion. But first, I will address the definition and importance of a 'proprietary right'.
- Needless to say, the right to property is a basic constitutional right (section 3 of the Basic Law: Human Dignity and Liberty). Therefore, it must not be harmed without an explicit provision of the law" (Civil Appeal 377/79 Edith Feitzer v. Ramat Gan Local Planning and Building Committee, IsrSC 35(3) 645).
The starting point is that the definition of "property" also includes a right in the property, including the ability to make use of it, transfer it, encumber it, or legally protect it. The ruling states as follows:
"Therefore, the word 'kinyan' applies, for the purpose of the subject before us, prima facie, to both a right in rem and a right .In personam, with regard to the prevention of the denial of an individual's property right, it does not matter whether a right in real estate or in proper rights is denied, if an object right is denied, or if a person's right vis-à-vis a defined debtor is expropriated only. As noted by my esteemed colleague, Justice Cheshin, in Civil Appeal 7112/93 Dodler et al. v. S. Yosef et al. [30], the "property" in the Basic Law also applies to rights that are not property rights in the classical sense (see Prof. Y. Weissman's comprehensive and instructive study, "Constitutional Protection of Property," Hapraklit 42 (1995) 258, 267). The emphasis is on the purpose, which is mainly to prevent the negation of what a person has; This is the harm that the Basic Law seeks to prevent. Therefore, the term "property" deviates, for the purpose of constitutional protection, the definition that applies to other areas of property law (see Prof. Y. Weissman, Iyunei Mishpat 16 (1990) 53). In my opinion, it also includes the denial of obligatory rights."