It should be emphasized that this is not a closed list, and the police must bring to the attention of the judge hearing the request any additional information that is relevant to the search that was requested that may affect the decision in the request, including relevant data regarding the "unfolding" picture of the investigation and relevant developments therein, as well as the conduct of the investigating authority itself. If the request submitted to the court does not meet these criteria, the court must consider deleting it without discussing it on its merits, in order to allow the authorities to resubmit it in an amended version.
- Details of most of these data are already required in the relevant procedures and guidelines. However, an examination of the practice in the trial courts reveals that there is a benefit in compiling them in the manner stated above. Ensuring that the criteria that I have discussed are met in practice, so that all the information required for a decision on the application is presented to the court, will help ensure that requests for a search of computer material are not submitted casually and that the investigating authorities will be required to consider all the relevant considerations and data before submitting a request for a search warrant on a computer.
C.1.B Judicial Discretion in the Framework of the Hearing and Decision of the Application
- The language of the Ordinance and the legislative history that I discussed above, show that the legislature sought to emphasize the importance of exercising judicial discretion in the framework of examining the request for a search of the computer material. As my colleague Justice Baron noted, "In the absence of a hearing in the presence of both parties, the court has the responsibility to demand on its own initiative the proportionality of the order, and this is also the legislature's demand" (paragraph 9 of its opinion in the Shimon case). The panel that heard the request to search the computer material is therefore obligated to examine the very justification for granting the search warrant, as well as to examine whether the request is sufficiently limited and minimizes the violation of privacy as much as possible. Indeed, "the judge is in charge of upholding the law and protecting privacy. He must remember that the citizens of the state must be protected from a fishing expedition conducted by the law enforcement authorities" (Media Data, at p. 742).
- In case law and literature, the argument has been made in the past that even after Amendment No. 12 to the Search Ordinance, the courts continue to issue sweeping search warrants that do not sufficiently restrict the investigative authorities (Philosof, at paragraph 7(b); Wismonsky, at p. 201). Against this background, and against the background of the arguments of the parties that were brought before us in the framework of the additional hearing in the Shimon case, the need arises to emphasize the considerations that should guide the court when it comes to deciding on a request for a search of computer material (compare: the Nahmias case, at pp. 325-326, regarding the main considerations relating to the decision on the application for a permit to wiretap).
- My colleague Justice Elron listed a number of considerations in the Shimon case in this context:
"In order to ensure that the search warrant requested on a computer - including a mobile phone - does not infringe on a person's privacy beyond what is required, the court must examine, inter alia, the nature and nature of the information on the basis of which the warrant is claimed to be necessary; the purpose for which it is requested; the severity of the offense for which the warrant is requested; the type of information contained on the computer or mobile phone; the nature of the actions requested; the extent of the infringement that may be caused to the privacy or other rights of the holder of the computer or telephone, and to the rights of another person; and the investigative actions carried out up to the date of the decision on the application (see the Urich I case, at paragraphs 27-38). This includes, as I determined in the Urich I case, a preliminary search that was carried out illegally on a computer or a smart mobile phone may also have an impact on the court's decision to grant an order for a further search of it" (ibid., at paragraph 27 of his opinion).
- I agree with my colleague that the court that heard the application for a search warrant must take into account the considerations listed above, and I will discuss a number of other relevant considerations below. It is important to emphasize in this context that this is not a closed or exhaustive list, and that the weight that must be given to each of these considerations, separately and cumulatively, is derived from the circumstances of the concrete case and is subject to the discretion of the judge hearing the application.
- In my view, in the framework of deciding on a request for a search warrant on a computer, reference must also be made to the status of the owner or holder of the computer (for example, a suspect, a witness or a complainant); the question of whether he is a professional in respect of whom confidentiality under any law applies (compare: section 3(g) of the Communications Data Law); and the complexity of the investigation. Insofar as the court believes that a request for a search warrant should be granted, consideration must be given to the possibility of limiting the search according to various parameters, including file types, date ranges, search words, and engagements with specific parties (see paragraph 9 of Justice Baron's opinion in the Shimon case). At the same time, the court must explicitly state whether it has decided that the search will take place without witnesses (in accordance with the provisions of section 26(a)(2) of the Ordinance), and must give consideration to the identity of the official who will carry out the search, taking into account the requirement of section 23a(a) of the Ordinance, according to which the search must be carried out by an "official who is trained in this field".
In this last context, it should be noted that in accordance with what is stated in the computer search procedure, a "functionary who is trained for this" is a police officer who has undergone appropriate training and certification (section 3(d) of the procedure), although in a number of decisions of the trial courts it has been determined in the past that a "skilled officer" may, in certain circumstances, also be a "regular" police officer, if exceptional skill is not required for extracting basic types of information from a mobile phone (see, for example: Criminal Case (Jerusalem District) 2077/06 State of Israel v. Arish, paragraph 6 [published in Nevo] (March 6,2007); Criminal Case (Shalom Petah Tikva) 24516-04-13 State of Israel v. Zatzni, para. 14 [published in Nevo] (February 22,2015); criminal case (Shalom J.M.) 1197-06-19 State of Israel v. Kalman, p. 16 [published in Nevo] (December 22,2019); see also section 3(d) of the computer search procedure). insofar as the court is of the opinion that the search can be carried out by a "regular" police officer, this requires consideration in the search warrant; In addition, consideration must be given, if necessary, to the unit or the investigative authority that should carry out the search (see the circumstances of the case in Miscellaneous Applications Criminal 4986/21 Fishman v. State of Israel [published in Nevo] (July 18,2021); see also Miscellaneous Criminal Applications 6155/21 Zino v. State of Israel, para. 14 [published in Nevo] (October 10,2021)).
- Finally, the minutes should document the course of the hearing of the application, which must be kept with copies of all the documents submitted during the hearing, and ensure that the decision details the reasons for granting the order as well as all the restrictions imposed on the examination of the computer material. This is in accordance with Sections 19 and 23 of the Supreme Court President's Procedure 1-18 "The Working Interface between Judges and Prosecution and Investigation Bodies in Motions Before Filing an Indictment" (July 1,2018), which I issued after receiving the recommendations of the investigation team headed by my colleague Justice Elron.
C.1.C Execution of the Search Order
- With regard to the conduct of the search itself, two stages must be separated: the stage of copying the computer material and the stage of reviewing the material. As a rule, the court-approved penetration is done for the purpose of copying the original computer material, and all the activities of perusing the information, including viewing, filtering and analyzing, are done on the copy (section 4(d)(1) of the Computer Search Procedure; Wismonsky, at pp. 200-201). According to what is stated in the computer search procedure, which reflects the position of the Police Investigations Division, the search warrant limits the scope of the search that can be carried out, but not the scope of the copying. In other words, even if the investigating authorities are permitted to copy all the contents of the seized device, this does not mean that they can review all the copied material, and they must be careful to review only that material included in the order given (sections 4(a)(12), 4(c)(6) and 4(c)(7) of the Computer Search Procedure). In addition, the investigating authorities must document all the actions they performed in the framework of the search of the computer material, in a manner that will enable a retrospective audit of its integrity and compliance with the conditions set out in the search warrant and to raise arguments against the search procedure, if any, (see: sections 14-15 of the State Attorney's Directive; section 4(d)(11) of the Computer Search Procedure). In addition, if the need arises to expand the search beyond the boundaries set by the court, a request to expand the search must be submitted, which will be heard in a format similar to that in which an application for a new search warrant was heard (see paragraph 68 above and the references therein).
C.2. The Court's Discretion to Hold a Hearing in the Presence of the Parties in Exceptional and Unique Cases
- Section 3 of the Criminal Procedure Law states, as stated, that "in any matter of procedure that is not provided for by statute, the court shall act in the manner that it deems best for the administration of justice." In our case, the State also did not dispute the court's authority to order in a specific case a hearing on a request to search computer material in the presence of the parties (paragraph 6 to complete its argument in an additional hearing, Shimon). Therefore, and even though in view of the purposes of the investigation stage that I discussed above, in the vast majority of cases the hearing will take place ex parte, I am of the opinion that there is no reason to sweepingly rule out the possibility that in certain cases the court will hold a hearing in the presence of the parties to requests for search warrants for computer material (whether immediately after the application was filed, or after an ex parte hearing was initially held). However, the exercise of this power should be limited to exceptional and rare cases only, in which the judge hearing the application is of the opinion that the special circumstances of the case require that the position of the computer owner or another party be heard in order to make the judicial decision.
- An example of this type of case can be found in a scenario in which an investigative authority seeks to search the computer of a professional who enjoys legal privilege (for example, a lawyer or a journalist), and it is found that the presence of that professional is necessary in order to examine whether there is justification for granting the warrant or whether there are any prerequisites for the search. Additional possible examples may be in situations where the court reaches the conclusion that it has been presented with partial or inaccurate information, in a way that prevents it from making a decision based on a full factual basis; and also in situations where there is a flaw in the conduct of the investigating authority, which may affect the decision in the application, and there is a real difficulty in clarifying the circumstances of the defect without summoning additional parties to the hearing (regarding the consequences of such defects, see below). It should be emphasized that the question of whether the state agrees to hold the hearing in the presence of the parties does not raise or lower the issue of the court's decision in this context (and see paragraph 9 of the opinion of Justice (as he was then called) Hendel in the Shimon case).
- Interim Summary
- As a rule, the hearing of an investigative authority's request to search computer material will take place ex parte, except in exceptional and unique cases in respect of which the court finds that the presence of another party is necessary in order to make a decision on the application. As a result, and in order to ensure the proportionality of the violation of privacy and the right to plea and to enable review of the search process at later stages, a number of criteria that the investigative authorities and the courts are required to apply in the search process at its various stages have been presented above.
Another question that arose in the Shimon case relates to the right to object to a search warrant on the computer, to which I will now turn.