With regard to searching computers and smartphones, the case law has determined that in view of the enormous amounts of information stored on these devices, and the ability to use this information to formulate a comprehensive picture of many aspects of a person's life - even the most intimate ones - it is necessary to..."The potential for invasion of privacy due to a computer search is, in many cases, immeasurably higher than the 'traditional' search of a person's yard or tools, and it also affects many third parties whose lives have been connected in one way or another - even for a moment - with the holder of the computer or smartphone" (Additional Criminal Hearing 1062/21 Jonathan Urich v. State of Israel, para. 29 (January 11, 2022)). Whereas, when it comes to exposure to security cameras that are placed in the public sphere, the violation of privacy and privacy is inherently significantly reduced.
- Thus, penetration of security cameras, even if the owner of the cameras is not a suspect and consents to the search, requires a judicial order. This is because security cameras are considered computer materials and access to them violates not only the privacy of the owner but also the privacy of many third parties who appear in the footage, and therefore the owner's consent is insufficient. If consent was still required, it should have been "informed consent," which includes explicit notification of the right to refuse the search and that the refusal would not be attributed to the obligation of the refusal. More than necessary, I will note that in our case I have not been persuaded that the search and penetration of the various security cameras were carried out on the basis of the "informed consent" of the camera owners, because it was not made clear to them that they were entitled to refuse the search without such refusal being attributed to their obligation.
Seizure and penetration of security cameras in the case before us
- The video is from a security camera owned by the defendant's family, installed above the door of their apartment in their apartment building At 8 Saharon Street, Tel Aviv-Yafo (P/49) was submitted through the policeman Avi Daniel. A request to back up and download video files at this address on July 20, 2022, between 08:00-16:00, was made by Policeman Avi Daniel on July 21, 2022 (P/50). It was noted in this request that the incident under investigation occurred on July 20, 2022, at 13:20. Attached to the request was an owner's consent form for downloading digital media files signed by the defendant's mother, Ms. Sarah Tarkin, in the presence of Officer Daniel, dated July 20, 2022. In his testimony in court, Officer Daniel stated that the camera was placed near the front door of the defendant's house, observing the staircase of that floor (p. 271 of Pruth). Officer Daniel stated that he gave the results of the penetration he made to the camera in the defendant's home to Officer Yaniv Oshri on July 21, 2022. Officer Daniel said in his testimony that he received the consent of the defendant's mother to download the digital media files from the security camera, which she owned, and even signed an "owner's consent form." However, in his testimony, Policeman Daniel stated that he was concerned that the defendant's mother did not understand him well due to language difficulties, and therefore he asked the police officer to act to obtain a judicial order, even though her written consent was obtained (p. 278 of the protégé). It was agreed that such an order was issued on July 25, 2022. Officer Daniel confirmed that he did not wait until the date of the signing of the court order, as he acted on the basis of the consent of the defendant's mother, as the owner of the camera, in order to penetrate the software and copy the video in question. As stated, the defense waived the testimony of the defendant's mother (p. 139 of the protégé), so that it was not heard from her regarding the explanations and her understanding before she gave her consent and signed the "Owner's Consent Form for Downloading Media Files", which is a structured form, in which it is written that the owner of the computer, the smartphone or theDVR "Agrees that the Israel Police, using a skilled computer investigator to produce videotaped evidence from a computer, will download/transcribe files fromDVR / SMART PHONE / P.C, that I am the legal owner of it, and this is of my own free will and of good will. I am aware of the files that will be produced will be used as evidence in court in the investigation file" (P/50).
In these circumstances, and even though this is said in the sense of excess, it seems to me that it is important to note that the law of "consent" is not the same as that of "informed consent". The main difference between the two in the context of a police search without a judicial warrant is that "informed consent" requires that the person who is explicitly aware of the object of the search, whether with respect to his body or with respect to his premises or property, that he has the right to refuse the search and that his refusal will not be used against him. This demand is intended to protect the autonomy of the citizen, the protection of his property, and the right to privacy of the citizen, in light of the inherent power disparities inherent in the relationship between the police and the citizen. Therefore, it is not enough that the person who is the subject of the search is asked to give his consent to the search so that he knows that he has the right to refuse. Therefore, and as determined in the Ben Haim, a general agreement without being informed of his right to refuse to carry out the search, and especially that the refusal will not be attributed to his obligation, is insufficient.