(See also: Crime Victims' Rights Law, 5761-2001, some of whose provisions also apply at the criminal investigation stage; as well as the explanatory notes to this law, in which it was noted that the provisions of the law express, inter alia, "a balance between the rights of victims and the rights of suspects and defendants" (the Crime Victims Rights Bill, 5761-2001, H.H. 506)).
- The proceedings before us deal with a specific area of the investigative authority's activity: searching computers and smartphones - and it seems that there is no need to elaborate on the significant violation of the privacy of the computer owners (as defined extensively above) and of third parties, which may be caused as a result of a search of these devices. The computer, and in particular the smartphone, constitutes in fact a kind of concentrated "repository" of information in text, photos, recordings and videos, from which it is possible to learn about a person's thoughts, feelings and experiences, as well as about his - sometimes the most intimate - engagements with others (Criminal Appeal 8627/14 Dvir v. State of Israel, para. 7 [published in Nevo] (July 14,2015)).
The unique characteristics of these devices are capable of influencing the proper interpretation of Section 23A of the Ordinance. Penetration into a computer or smartphone can reveal a huge volume of details from a person's life story; This fact, together with the technological capabilities by which it is possible to assemble a complete profile about a person using the information contained in these devices, leads to the conclusion that the potential for violation of privacy due to a computer search is, in many cases, immeasurably higher than the "traditional" search of a person's yard or tools, and it also concerns many third parties whose lives have been connected in one way or another - even for a moment - with the holder of the computer or smartphone (Fischer, at para. 10; Criminal Appeals Authority 8873/07 Heinz Israel Ltd. v. State of Israel, para. 17 [published in Nevo] (January 2,2011) (hereinafter: the Heinz case); Haim Wismonsky Criminal Investigation in Cyberspace 257 (2015) (hereinafter: Wismonsky)).
- Due to these unique characteristics, the legislature chose to specify in section 23A of the Ordinance a specific provision regarding a search of computer material. Unfortunately, however, the existing legislation with regard to searching computers follows the technological reality, which is developing at a very rapid pace. In fact, the need to adapt legislation and case law to technological developments is a constant and ongoing need (see, in similar contexts: Wismonsky, at pp. 175-180). This was the case when the massive use of the Internet began, shortly after the enactment of the Computers Law in 1995, and this is the situation now, in view of the existence of technologies that have come into our lives in recent years and have unrecognizably changed our access to online information. If in the past online information was stored on physical drives that were within the reach of the information owner, today "cloud" technology enables the storage of information on remote servers (including those located outside Israel's borders), and access to this information is possible from a variety of sources, and even from several computers at the same time. In view of the exponential pace of development of technology, it is clear that the technological reality that exists at the time of this writing is also not the end of the story, and it is reasonable to assume that in the foreseeable future there will be additional significant changes in terms of storing online information and the ways of accessing it (for a discussion of the subject, see, for example, the Fisher case, at paragraph 10). Therefore, whether we view section 23A of the Search Ordinance (and the Computers Law, in which section 23A of the Ordinance is included as an indirect amendment) as the product of legislation that follows a rapidly changing technological reality, or whether we see in it a "framework" provision whose generality is intended from the outset to enable adaptation to technological developments (for this argument, see: Miguel Deutsch, "The Computers Law in the Test of Time - The Perspective of the Lawmaker, " Sha'arei Mishpat 4,257,281 (2006); Miguel Deutsch, "Computer Legislation in Israel, " Iyunei Mishpat 22,432-427,433-433 (5759)), the interpretive examination of the section requires us to attribute weight to the technological development that has occurred since its enactment (and at least since the last amendment in 2005).
- In my opinion, the starting point for the entire hearing, and the first question on which we must decide in the framework of the proceedings at hand, is the format of the hearing of the application for a search warrant on a computer. As will be explained below, the decision on this procedural question involves additional decisions as to the nature of the search warrant for computer material and as to the proper balancing point between the rights and interests relevant to the decision on these issues. Therefore, the answer to this question necessarily has implications for the two additional questions that are at the center of the proceedings at hand. Indeed, as my colleague Justice Baron rightly noted in the Shimon case, the discussion of the question of the right of objection is intertwined with the manner in which the hearing takes place in the decision that is sought to be reached; and a situation in which the application for a search warrant was preceded by an illegal search of the same device, is nothing but a specific scenario that must be examined in light of the considerations outlined.
- Therefore, I will first address the question of the format of the hearing of the application for a search warrant, and I will say immediately that from an analysis of the purposes underlying the provision of section 23A of the Ordinance, I have reached the conclusion that with the exception of the most exceptional situations, the hearing of the application for a search of computer material should be held ex parte. However, given the unique characteristics of the computer material and the concern of excessive infringement of rights, this conclusion requires the outline of criteria - which will be detailed below - for the investigative authorities in filing applications and for the courts for the purpose of hearing them. The next issue relates to the question of the existence of a right of objection to a decision in an application for a search warrant on a computer, and even in this regard I will preface and say that the justifications for holding the hearing of the search request ex parte also lead to the conclusion that there is no reason to allow a right of objection during the investigation stage of a search warrant on a computer that has not yet been executed. Finally, I will discuss the question of the issuance of a previous illegal search that was carried out on the same device in respect of which the search warrant is now requested. In summary, I will say that in my view, a previous illegal search of a computer constitutes a consideration that must be taken into account in the framework of the application for a search warrant on that computer, but only in exceptional and rare cases will this consideration constitute an exclusive consideration for rejecting the application. This is in addition to the deep-rooted precedent according to which such a defect in the conduct of the investigative authorities may have significant consequences in the framework of the hearing in the main proceeding (see the Issacharov ruling).
The hearing of a search request in computer material - ex parte or in the presence of the parties?
- The Ordinance does not prescribe, as stated, procedures with regard to the hearing of an application for a search warrant, including a search of computer material. This is in contrast to other arrangements, such as an application for a wiretapping order under section 6(b) of the Wiretapping Law, 5739-1979 (hereinafter: the Wiretapping Law), in respect of which it is expressly determined that it will be heard "in the presence of one party only". The silence of the Ordinance on this matter served as fertile ground for the various interpretive positions presented by the parties in the proceedings before us.
- The practice at this time is that the hearing of requests for a search warrant on a computer is, as a rule, held ex parte, i.e., without the owner or holder of the computer being given the right to plead (the case of Urich II, in paragraph 4 of Justice Kara's opinion). However, this is not an absolute rule, and in exceptional cases - such as the search motions discussed in the Urich II case - the court holds a hearing in the presence of both parties (see also the decisions attached as Appendix 15 to Shimon's response of July 25,2021 to complete the argument on behalf of the state, including another order (Shalom Be'er Sheva) 68831-12-20 [published in Nevo] (December 31,2020) (names of the parties are confidential); search warrant / entry order (Shalom Be'er Sheva) 8163-01-21 [published in Nevo] (January 6,2021) (names of the parties are confidential); and search warrant / entry order (Shalom Be'er Sheva) 11559-01-21 [published in Nevo] (January 10,2021) (names of the parties are confidential)).
- The state - which relies on the majority opinion in the Shimon case - is of the opinion that it should be determined that the hearing of requests for a search of computer material should be held ex parte, in accordance with customary practice, and that the silence of the Ordinance constitutes a negative arrangement - that is, the legislature has consciously chosen not to establish in the law the possibility of hearing a request for a search of a computer in the presence of the parties. The defense counsel, on the other hand, is of the opinion that there is a legislative deficiency in this matter (lacuna) and it relies on the minority opinion of my colleague Justice Elron in the Shimon case, according to which the hearing should be held in the presence of both parties unless there is "a reasonable basis for concern that the search will be thwarted or the investigation proceedings will be disrupted" (paragraph 64 of the defense position, in another hearing Shimon). Shimon is also of the opinion that sometimes there will be justification for holding the hearing in the presence of both parties, for example if the request was filed after the computer was seized (paragraph 21 to complete the argument on his behalf).
- In accordance with the rules of interpretation that apply to us, where the language of the law allows for different interpretations, we must prefer the interpretation that is capable of optimally realizing the purposes of the arrangement under discussion (Criminal Appeal 8360/19 Zissman v. State of Israel, para. 14 [published in Nevo] (March 18,2020)). In our case, the Ordinance according to its language does not provide a clear answer to the questions under discussion, and therefore the purposes of section 23A of the Ordinance must be examined.
- The Purposes of the Arrangement
A.1. The Subjective Purpose
- In order to learn about the purposes of the arrangement that allows a search of computer material, we will first turn to an examination of the legislative history of this arrangement. Naturally, at the time of the enactment of the Ordinance in 1969, the third chapter of the Ordinance - entitled "Search" - did not relate to a search of computer material, but rather focused on a search of premises (a search "in any house or place", in the words of section 23 of the Ordinance), and the practice that took root in this context is that search warrants in premises are granted, as a rule, ex parte (Harpaz and Golan, at p. 174).
- In 1995, as stated, the Computers Law was enacted, and it was defined in its explanatory notes as "a law that will incorporate all aspects relating to computers" (Computers Bill, 5754-1994, Government Bill 478). It was also noted, inter alia, that "in light of the special nature of the computer, and the hardware and software relating to it, amendments are also requested in the search and seizure laws that will suit this special character, and will enable the investigative bodies to perform their duties properly." Therefore, the Computers Bill also included an indirect amendment to the Search Ordinance (Amendment No. 6), in which it was proposed to add section 23A, which stipulated that penetration into computer material and the production of output while penetrating as aforesaid, would be considered a search and would be carried out by an official skilled in performing such actions. Section 23a(b) stipulates that in contrast to a search of premises - which in certain circumstances can be conducted even without a judge's order - a search of computer material will be carried out only according to a judge's order, after the court is convinced that one or more of the grounds for search listed in section 23 of the Ordinance exist. The order also stipulates that "the permission to penetrate computer material or produce output, as the case may be, and the terms and purposes of the search must be explicitly stated".
- As part of the bill's presentation in the Knesset plenum, then-Justice Minister David Libai explained the logic underlying the amendment to the Search Ordinance:
"[...] We propose to give expression to the limitations in the methods of search and seizure, taking into account the special nature of the thing in which one seeks to search. The limitations are both with regard to the method of search and the expertise of the police officer who will conduct the search, and with regard to the methods of seizure and the period of seizure of a computer and computer material, which take into account the dire consequences that may result from the cessation of the usual use of the computer. A computer is not just another tool or another object, and the time has already come for us to bring this into the statute book as well" (Minutes of Session 247 of the 13,255-256 Knesset (July 26,1994)).