| In the Supreme Court |
| Additional Criminal Hearing 1062/21 |
| Additional Criminal Hearing 4072/21 |
| The Honorable President A. Hayut | |
| The Honorable Vice-President N. Hendel | |
| The Honorable Judge A. Vogelman | |
| The Honorable Judge Y. Amit | |
| The Honorable Justice N. Sohlberg | |
| The Honorable Judge D. Barak-Erez | |
| The Honorable Judge A. Baron | |
| The Honorable Judge G. Kara | |
| The Honorable Judge Y. Elron |
| The Applicants in Additional Criminal Hearing 1062/21: | 1. Jonathan Urich |
| 2. Ofer Golan | |
| 3. Yossi Shalom | |
| 4. Israel Einhorn |
| The Applicant in Additional Criminal Hearing 4072/21: | Yoel Yuli Shimon |
| Against |
| Respondent: | State of Israel |
| Friend of the Court in Additional Criminal Hearing 1062/21 and Additional Criminal Hearing 4072/21: |
Public Defender’s Office |
| Friend of the Court in Additional Criminal Hearing 1062/21: |
Israel Bar Association |
| An additional hearing on the Supreme Court’s judgment in Miscellaneous Criminal Motions 1758/20 [published in Nevo] dated January 26,2021, which was given by Deputy President H. Melcer and Justices N. Sohlberg and G. Kara, and in the Supreme Court’s judgment inMiscellaneous Criminal Motions 5105/20 [published in Nevo] dated May 25,2021, which was given by Justice (as he was then called) v. Hendel and Justices A. Baron and Y. Elron |
| Date of Meeting: | 18 Av 5781 | (27.7.2021) |
| On behalf of the Applicants in Additional Criminal Hearing 1062/21: | Adv. Amit Hadad; Adv. Meir Ehrenfeld; Adv. Lior Epstein; Adv. Maor Zamir; Adv. Noa Milstein |
| On behalf of the Applicant in Additional Criminal Hearing 4072/21: | Adv. Kobi Sudri |
| On behalf of the Respondent: | Adv. Naomi Granot; Adv. Sigal Blum;
Adv. Einat Gidoni |
| In the name of the Friend of the Court in Additional Criminal Hearing 1062/21 and in Additional Criminal Hearing 4072/21: |
Adv. Gil Shapira; Adv. Yigal Balfour; Adv. Ekaterina Kucherenko |
| On behalf of the Friend of the Court in Additional Criminal Hearing 1062/21: |
Adv. Adi Carmeli; Adv. Eran Golan |
Judgment
President A. Hayut:
The additional hearings before us - Additional Criminal Hearing 4072/21, on the judgment of this Court in Miscellaneous Applications Criminal 5105/20 [published in Nevo] (Judge (as he was then called) v. Hendel and Justices A. Baron and Y. Elron) of May 25,2021 (hereinafter, respectively: Additional Hearing Shimon and the Shimon Case); As well as Additional Criminal Hearing 1062/21, on the judgment of this Court in Various Criminal Motions 1758/20 [published in Nevo] (Vice-President H. Melcer and Justices N. Sohlberg and G. Kara) of January 26,2021 (hereinafter, respectively: Additional Hearing Urich and Urich II Case) - concerned with search warrants for computers and smartphones at the stage of the police investigation, before it was decided whether to file an indictment. These two additional hearings were discussed jointly in light of the thematic proximity between the issues that arise in them (see my decision of June 20,2021).
Introduction
- What is the purpose and scope of the provision of section 23A of the Criminal Procedure Ordinance (Arrest and Search) [New Version], 5729-1969 (hereinafter: the Ordinance or the Search Ordinance), which regulates the issue of penetration into computer material for the purpose of searching it? This is the interpretive question that arises in the proceedings at hand. This is the wording of the section:
Penetration of computer material
23A. (a) Penetration of computer material as well as the production of output while penetrating as aforesaid, shall be considered as a search and shall be carried out by an officer who is skilled in performing such actions; For this purpose, "penetration into computer material" - as defined in section 4 of the Computers Law, 5755-1995.
(b) Notwithstanding the provisions of this chapter, a search shall not be conducted as stated in subsection (a), but shall be conducted pursuant to an order of a judge under section 23, which expressly states the permit to penetrate computer material or produce output, as the case may be, and specifies the purposes of the search and its conditions to be determined in such a manner as not to infringe on a person's privacy beyond what is required.