This is an order that bears the logo of the Israel Police, i.e., it is a structured form prepared by the respondent and submitted to the court's decision and signature. Thus, even in the application submitted by the Respondent for the order, it was explicitly stated that a "freeze by account number" by Tether was requested, indicating the account number.
This is not a mistake in wording, but rather explicit, clear and unequivocal words, which determine the operation of the order.
- In light of the wording of the order, the respondent confirmed in the last hearing that the order "gives the impression that there is a coercive order without extraterritorial authority". In other words, the Respondent confirmed that according to its own approach, the order deviates from the authority given to the Israel Police and the court, both in that it is directed at Tether and in its content, which commands the company to freeze the account and act as stated in the order.
Hence, there is no dispute that the order, as drafted by the Israel Police in a structured form that it submitted to the trial court, deviates from the territorial authority of the Israel Police and even of the court, since it includes an extraterritorial coercive provision against a foreign entity, which is not subject to the authority of the Israeli court.
This is sufficient to order the invalidity of the order due to lack of authority.
- Notwithstanding the aforesaid, I found it necessary to present the relevant legal basis.
Although the Criminal Procedure Ordinance (Arrest and Search), 5729-1969 does not contain provisions regarding its territorial applicability, it is a law with only local territorial applicability, and the powers granted therein are directed at actions in Israel, in the hands of enforcement authorities in Israel, and under the supervision of Israeli courts (H. Wismonsky, Criminal Investigation in Cyberspace, (Nevo, 2015), p. 153, paragraph 3(a)). It is difficult to believe that the Arrest and Search Ordinance grants the Israel Police, and other enforcement agencies operating by virtue of the Ordinance, the authority to conduct searches and seizures (and even arrests, until the enactment of the Procedure Law (Enforcement Powers - Arrests), 5756-1986) outside the borders of the State of Israel. It is clear that an Israeli policeman cannot land in a foreign country - without a permit from a local authority and without coordination with it - and carry out enforcement actions that he is permitted in Israel (and if he had done so, he may not have the protections that apply to lawful action in Israel in the foreign country).
- The Police Ordinance also does not include provisions regarding its territorial application, but it also does not grant concrete powers to police officers to carry out enforcement actions outside of Israel, without legal authorization. Certainly, section 3 of the Police Ordinance should not be regarded as a kind of general authorization by a police officer to seize property and damage a person's property outside of Israel, without a concrete legal provision authorizing him to do so, under the conditions and boundaries set forth in that provision of the law.
Therefore, the Respondent's main argument is not that section 3 of the Police Ordinance authorizes the police to infringe on the rights of the appellant (or others), but rather that in its actions it did not act in a "coercive act", and in any event, to the extent that the rights were violated, they were not harmed by its action but by the "voluntary" decision of Tether. In other words, the focus of the inquiry is on the nature of the actions included in the request for a freeze that the police submitted to the court and in the order given by the court.
- A similar matter was examined in the past in criminal appeal 4211/91 State of Israel v. Masri (1993) in the context of the Prohibition of Wiretapping Law, 5739-1979, and it was held that "in the absence of any other provision, the jurisdiction of the courts in Israel is limited to the territory of the State of Israel. This principle is embodied in section 3 ofthe Penal Law, which states: 'The jurisdiction of the courts in Israel regarding offenses shall extend to the territory of the State and its shores, and according to the law, even beyond the aforementioned area...'" It also states that "the Israeli sovereign is not permitted to judge persons other than those whom he has guarded, and the boundaries of authority are usually the borders of the state... There is no provision in the law that expands its application beyond the borders of the state, nor can it be inferred from an implied intention. On the contrary: a territorial restriction on the requirement of the permit is necessitated by the logic of things. As a rule, a permit from an Israeli court has no effect outside the borders of Israel.(paragraph 20 of the opinion of the Honorable Justice D. Dorner; The underline is not in the original)). In that case, it was determined that the authority of the police was extended personally to Israeli citizens in the area (at a time when it was under full control of the State of Israel), and only to them, subject to strict observance of the rules of administrative law. However, as the scholar Wismonsky suggested in his book, the judgment in the al-Masri case should not be regarded as "a sweeping provision permitting 'administrative' wiretapping throughout the world," and in the event that wiretapping is required in the territory of another independent state, "a request for legal assistance from the foreign state will be prima facie required, and at least the consent of the state to carry out wiretapping through the Israeli authorities..." (Wismonsky, ibid., p. 122). Thus, "with regard to the power of criminal enforcement, territorial rules are observed with relative care," and the price of their violation may be in the realm of interstate relations and even in the exposure of the investigators to criminal law - and even to civil law - in the foreign country (Wismonsky, 122-123, and see note 42, and note 44).
- As a rule, this also applies to "the enforcement authority regarding the collection of digital evidence in cyberspace is limited to the territory of the state. State borders are built on cyberspace, and evidence stored on servers outside the state's territory is prohibited, as a rule, from being collected in the framework of a criminal investigation, unless there is an inter-state agreement for extraterritorial action." (Wismonsky, p. 127; the baseline is not in the original).
- The main way to regulate the consent between states to conduct extraterritorial investigations was established in the Legal Aid Law between States. According to Section 2(a) of the Legal Aid Law, legal aid includes, inter alia, "search and seizure operations ... Transferring information... Forfeiture of ...". Chapters 1 to 3 of the Law deal with a foreign country's application for legal aid in Israel. The 'competent authority' for accepting such requests is the Minister of Justice, and he may delegate it (except for the power to refuse the request) to another civil servant whose name will be published in the Official Gazette.
We are dealing with chapter 4 of the law, which deals with requests for legal assistance referred by the State of Israel to a foreign country. The 'competent authority' is the Attorney General, who is entitled to delegate them as specified in the law. In this way, the State of Israel can request a foreign country, inter alia, to seize an object and confiscate property in it, under the conditions set forth in the Legal Aid Law, and even to summon a person who is in the foreign country to legal proceedings in Israel, subject to the protection of his liberty, as stipulated in section 26 of the law.