(b) Notwithstanding the provisions of this chapter, a search shall not be conducted as stated in subsection (a), except in accordance with an order of a judge under section 23, which expressly states the permission to penetrate computer material or produce output, as the case may be, and specifies the purposes of the search and its conditions that will be determined in a manner that will not infringe on a person's privacy beyond what is required".
The provisions of this statute therefore stipulate that penetration into computer material and the extraction of output from it will be considered a search and will be done by a skilled official, only according to an order by a judge that explicitly states the permission to penetrate computer material and specifies the purposes of the search and its conditions in a manner that will not infringe privacy beyond what is required. In this regard, "penetration into computer material" means In section 4 to the Computers Law. This section states that a search of a computer will only be carried out in accordance with a judicial order - as opposed to other searches, which can be carried out in certain circumstances without a warrant (see Article 25 to the Criminal Procedure Ordinance).
Section 32(b) to the Criminal Procedure Ordinance concerning "Authority to seize objectsstates that:
"Notwithstanding the provisions of this chapter, no computer or thing embodying computer material shall be seized, if it is in the use of an institution as defined in section 35 of the Evidence Ordinance [New Version], 5731-1971, except pursuant to a court order; ...".
Article 35 The Evidence Ordinance states that:
"An institution - the state, a local authority, a business, or anyone who provides a service to the public."
- As a rule, in view of the enshrining of the constitutional right to privacy in the Basic Law, it is required that the search be carried out in accordance with a judge's order. However, sometimes there is an urgent need to conduct a search, which does not allow for an application to the court without thwarting the purpose of the search. Therefore, in order to fulfill the purpose of the search, the law allows a police officer, under certain circumstances, to conduct a search of a person's body, belongings or premises, even without a judge's order.
- A review of the various provisions of the law, which relate to the authority to search a person's body, belongings, or premises without a judicial warrant, shows that this authority is contingent on the existence of a reasonable suspicion that the person is in possession of any object whose possession is prohibited or that he is the object of a search by the police. The evidentiary threshold of reasonable suspicion therefore runs through the various legislative provisions that grant a police officer the authority to search a person's body without a judicial warrant (when Section 25(1) The PDP establishes a test of "foundation to assume" for conducting a search in a particular place). IICriminal Appeal Authority 10141/09 Avraham Ben Haim et al. v. State of Israel (6.3.2012) - hereinafter: "Ben Haim") It was held that the test of reasonable suspicion is essentially an objective test in which the court is required to assess the reasonableness of the judgment of the police officer who conducted the search in order to decide the question of the legality of the search. This is not an exhaustive and unequivocal definition, and the application of this test is based on the individual circumstances of each case, the information that the police officer had at the time of conducting the search, and even on his experience and professional judgment.
The Honorable President (Ret.) D. Beinisch elaborated in a judgment Ben Haim (verse 16), inter alia, as follows: