The President
Judge Y. Elron:
- I read the detailed opinion of my colleague the President, A. Hayut, and my position was different.
The additional hearings before us bring together weighty issues regarding the manner in which a search warrant is issued on a computer - including a smartphone.
Until the proceedings at the center of the proceedings at hand, this court has not yet been required to conduct a comprehensive discussion of the manner in which search warrants are issued on a computer and a smart mobile phone, and the considerations necessary for this purpose. The legislature has also not regulated the issue in detail. This is despite the severe violation of privacy involved in conducting searches of these devices and their widespread and significant use in the framework of criminal investigations - more than 20,000 requests for a search warrant for mobile phones are submitted to the courts every year, and in many additional cases, the investigative authorities conduct searches of these devices without a warrant, after obtaining the interrogee's consent to the search, even though the legality of these searches, at the very least, is questionable (see Miscellaneous Criminal Applications 5105/20 Shimon v. State of Israel, paragraph 24 of my opinion [published in Nevo] (May 25,2021) (hereinafter: Miscellaneous Criminal Motions Shimon)).
As will be expanded below, section 23A of the Criminal Procedure Ordinance (Arrest and Search) [New Version], 5729-1969 (hereinafter: the Search Ordinance), the wording of which will be brought below, does not relate to the possibility of hearing a request for a search warrant ex parte on these devices; nor does it relate to the question of whether there is a right to appeal or appeal decisions in applications for a search warrant as aforesaid; Similarly, the considerations that the court must examine in the course of the hearing of the application are not included therein.
These issues are the focus of the proceedings before us.