During the deliberations of the Constitution, Law and Justice Committee (hereinafter: the Constitution Committee), the committee's chairman, MK Michael Eitan, noted that "a person has the right to explain to the judge why he does not want to have access to his computer" and suggested that "this stage be done in the presence of two parties" (Minutes of Session 419 of the Constitution Committee, 14,11,16th Knesset (February 21,2005) (hereinafter: Minutes of Session No. 419)). The head of the Computer Offenses Division of the Israel Police, who was present at the hearing, replied that "it will place too much burden on us. This means that instead of dealing with investigations, we will be in the courts"; Similar words were made by MK Reshef Chen, who was of the opinion that MK Eitan's proposal "[t]he system is a burden that there is no chance in the world that it will withstand" (ibid., at pp. 15-16). Ultimately, MK Eitan's proposal was not accepted, and Amendment No. 12 did not include any provision relating to the procedures regarding requests to search for computer material.
During the presentation of Amendment No. 12 for first reading in the Knesset plenum, MK Ilan Shalgi noted that "the law tells the judge that he will have to define restrictions in the order in light of the issue of privacy. Then the judge will think about whether it is permissible to take all the material or only letters from certain dates [...]" (Minutes of Session 249 of the 16th Knesset and 53 (May 24,2005); emphases added). MK Eitan also clarified in the Knesset plenum, as part of the discussion in the second and third readings regarding the amendment proposal, that the main body responsible for determining the implementation of the provision of section 23A of the Ordinance is the court: "There is a clear instruction to the court that in search warrants related to a computer or computer material, the judge must consider the matter in a special way before he signs. It must give special consideration to the violation of the privacy of the person from whom the computer was taken [...] The order must specify the terms of the search and its objectives. The court must be very careful" (Minutes of Session 259 of the 16th and 51st Knesset (June 20,2005); emphases added).
- For the sake of completeness, it should be noted that in 2014, a bill passed its first reading, which includes, inter alia, a detailed regulation of the manner in which requests for search warrants on a computer are heard (the Criminal Procedure Bill (Enforcement Powers - Invention, Search and Seizure), 5774-2014; hereinafter: the Search and Seizure Bill). Section 99 of the Search and Seizure Bill stipulates that the hearing of a number of types of requests, including an order to "act with computer material", will take place ex parte and behind closed doors. The explanatory notes to the bill state in this context that "in order not to thwart the search by means of actions taken by the suspect to disrupt or conceal the evidence, it is necessary at this stage to maintain the confidentiality of the proceeding and not to disclose it to the suspect, lest the conduct of the investigation in its early stages be harmed" (at p. 587). However, the Search and Seizure Bill was not accepted and was not passed legally, and therefore it cannot be attributed a normative status that affects the decision of the questions at the center of the proceedings at hand.
- From the aforesaid, it appears that the legislature was aware that the hearing of applications for a search warrant for computer material takes place, as a rule, in the presence of one party, and it chose not to change this practice. In my opinion, it can be concluded from this that the subjective purpose underlying the provision of section 23A(b) in its current version is not to strengthen the protection of the right to privacy by granting the owner or holder of the computer the right to plead in the framework of the hearing of the application, but rather by structuring the court's discretion, and clarifying the importance of considering and examining in particular the violation of privacy that will be caused as a result of the judicial order. This supports the State's position that the silence of the Ordinance regarding the manner in which the application is heard constitutes a negative arrangement, and reflects the legislature's conscious refusal to order that the hearing be held in the presence of the parties.
- However, as already noted, when section 23A of the Ordinance was enacted in its original version (1995), and even when Amendment No. 12 to the Ordinance was enacted, the patterns of computer use were different from those that are common today. To illustrate, smartphones entered our lives a few years after the enactment of Amendment No. 12 to the Ordinance (the first "iPhone" model was launched in 2007, about two years after the enactment of Amendment No. 12 (Martin Campbell-Kelly & Daniel D. Garcia-Swartz, FROM MAINFRAMES TO SMARTPHONES: A HISTORY OF THE INTERNATIONAL COMPUTER INDUSTRY 175 (2015))). The defense rightly notes that this technological development is likely to have a significant impact on the balance between the various considerations relevant to our case (paragraph 28 of its position in additional hearing, Shimon). It is clear, therefore, that it is not sufficient to examine the subjective purpose underlying the enactment of the arrangement for the search of computer material, as it was understood by the members of Knesset at the time of the enactment of the section or Amendment No. 12. It has already been ruled that the interpretation of a piece of legislation is always dynamic, and it must be adapted to the changing conditions of life (Aharon Barak, Interpretation in Law - Interpretation of the Legislation 265-264,267 (5753)). Therefore, we must deepen and examine the objective purpose of this arrangement in light of the current technological reality (ibid., at p. 273).
A.2 The Objective Purpose
- The objective purpose of legislation is derived from the goals, values, policy and social interests that the legal text is intended to realize in a modern democratic society (High Court of Justice 693/91 Efrat v. Commissioner of the Population Registry in the Ministry of the Interior, IsrSC 47(1) 749,763 (1993)). As far as the objective purpose of the provision of section 23A of the Ordinance is concerned, it is learned both from the close circle - which focuses on the Ordinance itself and the arrangements anchored in it - and from the broader circle, which expresses the basic values of our legal system (Additional Criminal Hearing 7048/97 Anonymous v. Minister of Defense, IsrSC 55(1) 721,739 (2000)).
- The need to provide the investigative authorities with tools that will help them reach the truth and bring the investigation stage to a rapid conclusion stems, as noted, from the desire to realize the public interest in the prevention of delinquency and law enforcement, the right of victims of offenses to bring to justice those who harmed them, and the right of suspects and interrogees to have the investigation in their case concluded as quickly as possible. Indeed, a search on a computer or smartphone may significantly advance the investigation and assist in bringing criminals to justice. This is in view of the enormous amount of information that is currently stored on computers; because it is possible to conduct an efficient and focused search of a large amount of information on a computer, in a way that allows the investigation to proceed quickly; and because the products of the search (correspondence, photographs, recordings, etc.) can serve as reliable evidence that has considerable evidentiary value (Amit, at p. 308). The possibility of conducting a search of a computer under section 23A of the Ordinance grants, therefore, access to "a treasure trove of incriminating evidence and relevant information that can and should be used by the investigating authorities in their struggle against law breakers and offenders" (Heinz case, at paragraph 17). Restricting the investigative authorities' access to this evidence is liable to place them at a real disadvantage vis-à-vis the violators of the law, including those who use the modern technological environment to commit offenses, leaving behind a trail of casualties but also a trail of information that may assist in the investigation of the truth and the enforcement of the law against those who committed an offense (Media Data, at pp. 714-715; Michael Birnhack, Private Space: The Right to Privacy between Law and Technology 88,57-87,175-176 (2011); Shapira, Bressler-Gonen and Hillel, at p. 49).
- However, and as I have already noted, the provision of these tools to the investigative authorities raises an increased concern of disproportionate infringement of the rights of computer and smartphone owners, as well as the rights of third parties - and especially the right to privacy. This right was enshrined in the Protection of Privacy Law, 5741-1981, and subsequently gained constitutional status as anchored in section 7 of the Basic Law: Human Dignity and Liberty, which states:
Privacy and privacy