In this context, consideration should be given to the fact that in 2014, a government bill was presented to the Knesset, which sought to anchor in the law an explicit determination that an application for a search warrant - including a search of a computer - could be heard ex parte (the Invention, Search and Seizure Bill, mentioned above). However, since the bill was abandoned - its provisions should not be read into the existing law, and certainly not when it involves a violation of basic rights such as the right to a plea and the right to a fair trial - from which the rule is derived that a hearing should be allowed in the presence of the parties to a proceeding whose rights are liable to be affected by the outcome, even if the subject is being investigated.
In the absence of any other explicit provision in the law, the interpretive presumption regarding the existence of a right to a plea for the interrogee before the court orders the issuance of a search warrant on a computer, which is likely to infringe on his right to privacy, except in cases where there is a reasonable basis for concern that the search will be thwarted or the investigation will be disrupted as a result. It is clear that the fact that the courts in practice hold hearings on requests for these search warrants ex parte does not contradict this interpretive presumption.
- Moreover, as expanded above, in 2005 the legislature established a unique provision that applies only to search warrants on computers, according to which the search warrant will include details of the search terms - which will limit and reduce the violation of privacy involved in the search.
The implementation of the distinction established by the legislature between a search warrant in premises and a search warrant on a computer - in which its purposes and terms must be included in a manner that will minimize the violation of privacy - requires a reexamination of the practice that has taken root in the Magistrate's Courts not to hold a hearing on requests for search warrants on computers in the presence of the parties. This is because the court has a limited ability to determine all the considerations that it must examine in light of the provisions of section 23A of the Search Ordinance, when the hearing is conducted ex parte. Holding a hearing in the presence of the owner or holder of the computer may contribute both to examining the necessity of the search; and to examining its scope.