Conclusion
- Before concluding, I will summarize my position:
Against the background of the severe and severe violation of a person's privacy in the course of conducting a search of his computer - and in particular the mobile phone in his possession - care must be taken to ensure that the search is conducted in a manner that will prevent further violation of his privacy. This is in accordance with the explicit mandate of the legislature in section 23A of the Search Ordinance. Therefore, a search of a person's computer or a smartphone should not be conducted - except in accordance with a judicial search warrant; and this order must include clear and detailed conditions that will limit the scope of the search.
In order to ensure the proper conduct of this proceeding, and in order to enable a person to exercise his right to plead before his rights are violated, care must be taken that a hearing on the application for a search warrant is generally held in the presence of the parties concerned, who will be able to raise their arguments regarding the legality of the search warrant requested, its necessity and its scope. However, an exception to this rule may apply in cases where there is a reasonable basis for concern that this will lead to the thwarting of the search or disruption of the investigation, which is well anchored in the details of the case that is brought before the court, and which cannot be otherwise determined. Only in these cases, it will be possible to hold the hearing ex parte.
In any case, whether the hearing is held in the presence of the parties, or ex parte - before the court grants the request for a search warrant, it will examine the purposes of the requested order and its terms, in a manner that will ensure that the violation of privacy involved in conducting the search does not exceed what is required. In this framework, the court must address, inter alia, the claims that the investigating authorities engaged in illegal activity prior to the request for the warrant, and that if it were not for those actions, the request would not have been submitted to the court at all. If it is found that an action tainted by illegality was indeed taken, the burden will be placed on the investigative authorities to prove that its results are not at the basis of the request for a search warrant. If they do not meet this burden, and there are no special justifications for granting the request despite this, the court will order the rejection of the request.