However, this action comes at a heavy price in the form of a very serious violation of the interrogee's privacy. Browsing through the list of correspondence on the mobile phone reveals to the interrogee information that significantly deviates from the information required for the interrogation - such as the details of his acquaintances, the nature of the relationship with them, and their photos. In addition to the independent violation of the privacy of the interrogee and his acquaintances, the interrogee may also fear that he will use sensitive information revealed in his statements in order to cause him to cooperate in the investigation - in a manner that may impair the integrity of the criminal proceeding. The violation of the interrogee's privacy may even be exacerbated if the information is stored on the police servers unnecessarily, especially when it comes to information that was not required for the interrogation in the first place.
Moreover, the interrogee is not always aware of the extent of the material stored on his computer and his smartphone, and his ability to consent to a limited search only, which will prevent unnecessary violation of his privacy, is limited, if any. Therefore, it appears that the violation of the interrogee's privacy as a result of an initial search of his device during the interrogation does not receive a satisfactory response by his consent to allow the interrogees to review the correspondence on his device; In any case, it is doubtful in my opinion whether his consent to conduct a search of his device without a warrant can be regarded as "informed consent" which may authorize a search conducted without a warrant and in the absence of any other source of authority in law (Criminal Appeals Authority 10141/09 Ben Haim v. State of Israel, IsrSC 65(3) 305 339-348 (2012) (hereinafter: the Ben Haim case); see also Riley v. California, 134 S. Ct. 2473,2485-2488 (2014); see also and compare the decision of the European Court of Human Rights: Rueda v. Spain, no. 32600/12 ECHR 2017).
- Despite the aforementioned amendment to the law, technological developments and the increasing use of computers, there has been no real change in the way requests for search warrants are handled.
Often these orders are very general, do not contain conditions for restricting the search of the computer in which the search is performed, while the purpose of the search is stated only in general terms and without sufficient reasoning. As some have commented, hundreds of search warrants on computers are issued every day, sometimes without exercising real judicial discretion (see, for example, Criminal Case (Tel Aviv District) 40206/05 State of Israel v. Philosof, paragraphs 7(a)-(b) [published in Nevo] (February 5,2007). See also Assaf Harduf's article "An Inadmissible Idea, an Inconvenient Truth: Invalidation of Evidence on the Basis of the Manner in which it was Obtained" Mishpat VeMishmal 141,173 H.S. 135 (2019)).