[As a parenthesis, as these lines are being written, I am discussing a case in which the police requested and received a warrant to penetrate a suspect's phone in order to investigate a sexual offense against a certain woman. After the phone was unloaded, it became clear that the suspect had allegedly committed additional offenses of violating the privacy of a number of complainants whom he filmed without their consent while they were having sex. We have before us an example of the evidentiary potential inherent in a smartphone and how the investigation of a certain offense leads to the exposure of additional offenses.]
- The smartphone is a unique device, but despite this, there is no choice but to adhere to the basic concepts of the criminal proceeding. Not every technological advance leads to the undermining of these concepts, and it is not for nothing that a trial that equates the disqualification of evidence at the interrogation stage or the halt of the interrogation is still underway, due to an illegal act committed by the investigators during the interrogation.
How can the potential for severe violation of privacy be balanced against the great investigative potential inherent in the smartphone at the interrogation stage and the public interest in an effective and effective police investigation?
There are three answers to this: awareness-awareness-awareness. The magistrate who agreed to the order to penetrate the smartphone must be aware of the potential violation of privacy, and the additional hearing in the case before us contributes greatly to this awareness. As a rule, there is no room for signing a sweeping form. The court must examine whether this is a minor or serious offense, and demand that the investigator delimit the order to certain dates, certain figures, certain phone numbers, etc. But first of all, the notice must be on the investigators' side, and it must also be reflected in the structure of the form. Just as the enforcement authorities have studied and changed the form regarding seizure for forfeiture of value (following the Criminal Appeals Authority 4526/18 Elovitch v. State of Israel [published in Nevo] (June 5,2018)), the form of the search warrant and computer intrusion order must also be refreshed and changed. The form must be structured in such a way that it includes a number of options that can limit and reduce the scope of the search, such as: on the time level; at the level of applications (WhatsApp, Instagram, text messages, Facebook, etc.); in the realm of search terms and more, and where a sweeping intrusion order is indeed requested, the request must be marked prominently in order to draw the attention of the judge, as well as where there is a real concern that the privileges will be violated. My colleague the President discussed this in detail in paragraph 69 of her judgment and I will not repeat what is required by the language of section 23a(b) of the judgment, according to which the terms of the order "shall be determined in such a way as not to infringe on a person's privacy beyond what is required".