Therefore, it is appropriate for my approach to leave the court discretion to balance the interest in advancing the investigation with the rights of the interrogee, in accordance with the circumstances of the case.
- Summary of things so far: In accordance with the current wording of section 23A of the Search Ordinance, which was amended in 2005, a request for a search warrant on a computer should not be granted until its objectives and conditions have been examined - in a manner that will ensure that the violation of privacy involved in the conduct of the search does not exceed what is required. In doing so, the legislature has imposed on the courts a complex balancing act between the public interest in conducting the search as part of conducting the investigation, and the right to privacy.
As part of this balancing act, the court must consider the arguments that the investigating authorities engaged in illegal activity prior to the application for the issuance of the order - and that without those actions, the request would not have been submitted to the court at all. In cases where it is found that an illegal action was indeed taken; that the products of this action are the basis of the request for a search warrant on the computer; and that there are no special justifications for granting the request despite this illegality - the court will order the rejection of the application. In this sense, my opinion is no different from that which I have already expressed in the case of Urich I.
Given this, there is a real difficulty in making these necessary balances, and in examining the scope of the necessary violation of a person's right to privacy, without him being given the opportunity to raise his arguments on the matter. This issue is the focus of another criminal discussion of Shimon - and I will now address it.
Hearing a request for a search warrant on a computer in the presence of the parties
- The starting point for examining the question of whether a hearing should be held on a request for a search warrant on a computer in the presence of the parties is the basic principle that a person's rights should not be violated before he is given a fair and proper opportunity to voice his arguments (see, for example, Criminal Appeals Authority 851/09 Shemesh v. State of Israel, IsrSC 66(1) 288,305 (2010) (hereinafter: Shemesh Criminal Appeals Authority); Criminal Appeal Authority 837/12 State of Israel v. Guskov, para. 24 [published in Nevo] (November 20,2012); Criminal Appeal 7039/20 Ben Michael v. State of Israel, paragraph 3 [published in Nevo] (October 19,2020)).
Therefore, in the absence of an explicit provision in the law or a significant consideration that supports the limitation of the right to a plea, there is a presumption that this right should not be limited or denied (see Shemesh Criminal Appeals Authority, at p. 305, and the references appearing therein). This is in accordance with the general principle that an infringement of a basic right will generally be done according to an explicit authorization in the law only (see, for example, Authority to Appeal Arbitration Award 6976/18 Prison Service v. Farsh, paragraph 5 of the judgment [published in Nevo] (June 16,2021); Criminal Appeals Authority 8182/18 Moshia v. State of Israel, paragraph 7 of the judgment [published in Nevo] (February 18,2020)).