The lack of sufficient detail regarding the terms of many search warrants issued on computers - and mobile phones in particular - shows that the amendment made by the legislature in 2005 was not internalized by the courts, which sometimes do not provide sufficient protection to the interrogee's right to privacy, and do not properly consider all the aspects relating to the matter.
Similarly, those who support the approach where, as a rule, a hearing should not be held in the presence of the parties to a request for a search warrant on a computer, and that an appeal or appeal against a decision to grant the warrant - as was also the opinion of the majority in various applications - seek to draw an equal conclusion between the manner in which a request for a search warrant in Hatzerim is heard and a request to issue a search warrant on a computer. This is despite the distinction that the legislature made in 2005 between these search warrants, and despite the existence of significant differences between the concern that the search will thwart or disrupt the investigation in the various contexts of these warrants.
I will now address these issues in their order.
Considerations for issuing a search warrant on a computer
- Section 23A of the Search Ordinance states, as stated, that a search warrant must specify its purposes and conditions in a manner that will ensure that the violation of privacy caused as a result of the search does not exceed "required". However, it is clear that in order to approve the purposes and conditions of the order, the court must exercise independent discretion, and examine whether its goals and conditions are indeed sufficiently limited - or whether they are too broad and may result in unnecessary violation of privacy.
In this regard, the courts hearing a request for a search warrant on a computer 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 the warrant 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 that were carried out up to the date of the decision on the application (see also Miscellaneous Applications Criminal Shimon, at paragraph 27 of my judgment; ibid., at paragraph 9 of the judgment of Justice A. Baron; the Urich I case, at paragraphs 26-27; Miscellaneous Criminal Motions 4986/21 Fishman v. State of Israel [published in Nevo] (July 18,2021) (hereinafter: the Fishman case); Section 98 of the Criminal Procedure Bill (Enforcement Powers - Invention, Search and Seizure), 5774-2014, Government Bill 574 (hereinafter: the Invention, Search and Seizure Bill); State Attorney's Directive 7.14 "Principles of Action Regarding the Manner of Seizing, Searching, Copying and Examining Computers and Computer Materials, Documenting Them and Providing the Products Constituting 'Investigative Material' for the Defense's Review" paragraph 5 (March 24,2021)).