As detailed in my decisions in various applications Shimon Criminal Court and in various criminal applications 7917/19 Urich v. State of Israel [published in Nevo] (December 25,2019) (hereinafter: the First Urich case), contrary to the position of my colleague the President, I am of the opinion that the hearing of the application for a search warrant on a computer should be held in the presence of the parties, unless there is a reasonable basis for concern that the search will be thwarted or the investigation will be disrupted as a result; and that, as a rule, the decision in a request for such a search warrant can be appealed - whether by way of an appeal, or by way of a request for reconsideration of the decision, in cases where it was given ex parte and this is possible. With regard to the considerations relevant to the issuance of a search warrant on a computer, Odani is of the opinion that other investigative actions that were taken, inter alia, should be taken into account - including illegal actions on the basis of which the request for a search warrant was filed.
Due to the centrality of these issues, I will return below to the main points of my position, and will address a number of issues that did not arise in the framework of my previous decisions.
Background - Computer intrusion and computer search warrant
- In recent decades, the use of computers has become very common, and today almost everyone has a "small computer" in their pocket - in the form of a smart mobile phone. Computers serve as an essential component of daily life and professional work, and help in our personal lives in a wide variety of fields. Studies, social connections, writing "for a drawer" and other hobbies are becoming more accessible than in the past, thanks to the computers we have and the accessibility they allow to the Internet ("network"). However, at the same time as the use of computers, a great deal of significant information is stored about their users, who are exposed to the risk of severe violation of their privacy if this information is exposed to public against their will and against their will (see also paragraph 29 of the opinion of my colleague President A. Hayut).
Against this background, and with the expansion of the use of computers in the early 1990s, the Computers Law, 5755-1995 (hereinafter: the Computers Law), was enacted, which was intended to "incorporate within it all aspects relating to computers" (Explanatory Notes to the Proposed Computers Law, 5754-1994, H.H. 478,478) - including aspects intended to protect the privacy of computer users. Among other things, the Computers Law stipulates that unlawful penetration of a computer will constitute a criminal offense punishable by up to 3 or 5 years in prison, depending on the circumstances of the offense (sections 4 and 5 there).