Accordingly, the amended wording of section 23a(b) of the Search Ordinance now instructs that the search order must set goals and conditions that will reduce the violation of privacy involved in the search - in place of the general requirement in its previous version:
"Notwithstanding the provisions of this chapter, a search as stated in subsection (a) shall not be conducted, except in accordance with an order of a judge in accordance with section 23, which explicitly states the permission to penetrate computer material or produce output, as the case may be, and specifies the purposes of the search and the conditions thereof, which will be determined in such a manner as not to infringe on a person's privacy beyond what is required."
Thus, the legislature set two cumulative conditions for the issuance of a search warrant on a computer, and in a smartphone in particular, which differ in part from those that apply to a search of premises:
The first condition is that one of the grounds for the search set forth in section 23 of the Search Ordinance, quoted above, is satisfied;
and the second condition, which is unique to search warrants on computers, is that the purposes and conditions of the search will be determined in the order itself and will ensure that the violation of a person's privacy will not be "beyond what is required" (my opinion in the case of Urich I, at paragraph 24; and in various motions in Criminal Shimon, at paragraph 26).
- Since section 23a(b) of the Search Ordinance was amended in 2005, the importance of striking a delicate and precise balance between the need to conduct searches of computers in order to promote criminal investigations and the right to privacy of the computer owner and those who belong to his social circles has become even more pronounced. This is because the use of computers - and in particular smart mobile phones - has become particularly common. These devices are now in the hands of almost every person, and they store inexhaustible information about the owner of the device and his relatives.
Using a person's computer and smartphone, it is often possible to learn about his past and his plans for the future, as well as about his hobbies, his thoughts, his heart's feelings, his acquaintances, his lovers and his haters. The places where he stayed are documented with an accurate geographical indication, sometimes accompanied by photos, and stored daily on his devices and online accounts; and in many cases, his secrets and those of his friends are stored on his smartphone or computer.