The Computers Law, 5755-1995 (hereinafter: "the Computers Law"), defines in section "output" in section 1 as: "data, signs, concepts or instructions, which are produced, in any way, by a computer".
An explanation of the nature of digital evidence was given by the Supreme Court in the Fisher case (Miscellaneous Criminal Applications 6071/17 State of Israel v. Fischer, Ronel [Nevo] (August 27, 2017) (hereinafter: "the Fisher case")), in paragraph 18:
"Digital information is diverse - when you think of information that is created or stored digitally, the tendency is to imagine a Word document, a PowerPoint presentation, an email correspondence, or an image file. In fact, however, everything stored on an electronic component, such as a computer or mobile phone, constitutes digital information. Digital information includes software, mobile applications, chat messages, operating systems, video and audio files, web pages, as well as "transparent" data that the regular user is not aware of its existence or how it works. Indeed, the digital information that is present in most of our daily lives is usually of the type of Word documents, images, and web pages."
- Thus, where we are dealing with digital vision - and the Skype correspondence that is the subject of this discussion constitutes such evidence - we ostensibly foresee a correspondence that can be read, but in practice, it is an output that has undergone a computerized processing process in order to be read by us, and moreover, on the face of it, it is not an original, but a copy that does not meet the best evidence. Legislation does not regulate the way a pitch is submitted, except in special cases. Thus, and for example, in section 36 ofthe Evidence Ordinance [New Version], 5731-1971 (hereinafter: the "Evidence Ordinance"), it was determined that the method of submission of an institutional record, which is accepted as evidence to prove the veracity of its content, if the institution, in the ordinary course of its management, conducts a record of the event that is the subject of the record close to its occurrence; And the way the data that is the subject of the record and the way the record is edited testifies to the authenticity of the contents of the record. With regard to an institutional record that it has produced, the provision of section 36 of the Evidence Ordinance adds that it must meet the following conditions: the manner in which the record is produced is sufficient to attest to its reliability; and the institution takes, on a regular basis, reasonable means of protection against penetration into computer material and against disruption of the computer's work. Similarly, in the Testimony Regulations (Photographic Copies), 5730-1969 (hereinafter: "the Photographic Copies Regulations"), it was determined in section 3A(6) that a computer file of a burning document may be submitted, if it was produced as a result of a computerized scanning process that meets the conditions of this section, i.e., the scanner has confirmed that the document has been scanned from the original in its entirety and that the computer file is accompanied by information indicating that it is the product of a computerized scan (i.e., in a technological procedure that copies an original document into a computer file in such a way that it is possible to retrieve from it a legible product that is identical in content to the original); Reasonable measures have been taken to ensure that the computer file is kept in a faithful manner to the original; Reasonable safeguards have been taken on a regular basis against penetration of the computer file and against disruption of the computer's work, which may impair the fidelity of the computer file to the original; If there has been a transition from technology to technology, reasonable measures have been taken to ensure the fidelity of the computer file to the original; And these actions were documented.
- Does the rule, which determines how the output will be submitted in special cases, attest to the prohibition of submitting it in other cases? I am of the opinion that this question should be answered in the negative, but I am of the opinion that as a condition for submitting the output, at least rules should be applied that ensure the fidelity of the output to the source. This determination takes into account the development of the times on the one hand and the special evidentiary challenges inherent in the nature of the output as evidence on the other. My determinations in this regard are similar to the development of case law regarding the admissibility of a recording - which is also digital vision in audio format as opposed to a letter. With regard to the admissibility of a recording and the conditions for its admissibility - the beginning of precedent in CriminalAppeal 28/59 Anonymous v. Attorney General, IsrSC 13 1205, 1209 (1959), in which six cumulative conditions were established for the admissibility of a recording tape as evidence: (1) the device, or other means used for the recording, is functioning properly and may record or record the things that have been said; (2) The person who handled the recording knew his job; (3) the recording or recording is reliable and correct; (4) no changes were made to the recording film in the form of additions or omissions; (5) the voices of the speakers in the recording were correctly identified; (6) The words were made of the good will of the speakers: "Perhaps the reel was handled in a way that could add or subtract, the question arises here, if the speaker or speakers were not treated in a manner that could lead them to say things that were forced upon them, or, alternatively, perhaps there was no response from one of those present, since he was forcibly prevented from making his words."
In the same matter, the Supreme Court expressed its opinion that the sixth and final condition relates to the content of the recorded conversation and not to the technical conditions for its admission as evidence. This condition will be relevant where it must be proven that the statements were made of the speaker's good will, and therefore it will affect only the weight of the recorded evidence and not its admissibility. (ibid., at section 23).