Judge A. Vogelman:
The interpretation proposed by my colleague President E. Hayut is in line with my view of the rules of interpretation accepted by us, the purpose of the legislation, and the necessary balances in the issues that are to be decided at the stage that we are required to decide - the stage of the criminal investigation.
I therefore agree with my colleague's comprehensive opinion, her conclusions and the result she proposes.
Judge
Justice D. Barak-Erez:
- The use of the means of searching mobile phones and computers for the purposes of a criminal investigation repeatedly raises questions, both on the procedural and substantive levels. In the present proceeding, we are not required to address all of them, but only one chapter of the entire process - with a focus on judicial involvement in the issuance of search warrants of this type, which are referred to in the Criminal Procedure Ordinance (Arrest and Search) [New Version], 5729-1969 (hereinafter: the Criminal Procedure Ordinance or the Ordinance) "warrants to penetrate computer material" at the stage of the police investigation.
- I will preface by saying that in essence, I agree with most of the principles outlined by my colleague President E. Hayut in her orderly and comprehensive opinion. However, as I will explain, I myself hold a less restrictive approach as to the scope of the court's discretion to issue an intrusion order against a computer or mobile phone on the basis of previous illegality. Beyond that, I have found that the issue of the lack of the right to appeal a decision on the subject of intrusion orders raises a particular difficulty. However, after considering the range of possibilities, I wholeheartedly agree with the conclusion that there is no choice but to leave the issue to legislative regulation.
The Hearing of a Request for an Order to Break into a Computer or Mobile Phone and the Scope of Consideration of Illegality in the Conduct of the Investigating Authority - Rules with Exceptions
- Like my colleague the President, I too am of the opinion that in the usual case, the natural place for clarifying claims relating to the illegality of a search is in the main proceeding. In addition, I agree with the determination that the hearing of the application for an order to penetrate a computer or a mobile phone should generally be held ex parte. These decisions are necessitated by the nature and essence of the investigative stage. Moreover, as my colleague the President, I am of the opinion that it is possible to deviate from the aforementioned rules in exceptional cases. So far this is the agreed area, and therefore I will not add to it.
- At the same time, in my own opinion, I would refrain from defining as "rare" the cases in which the consideration of illegality in the conduct of the investigating authority would constitute an exclusive consideration in rejecting an application for an intrusion warrant. This, in my view, depends on the intensity of the illegality and the extent of the defect that occurred in the investigation. In any event, the question to what extent these cases - in which the illegal search alone will justify the rejection of the application for a search warrant - will be exceptional, should be the result of the police practice itself. It is to be hoped that there will be exceptions and rare. Therefore, in my own opinion, I would leave the court hearing the application a slightly more flexible scope of discretion, in comparison to the one outlined by my colleague the President in her opinion, to decide the question of the extent to which the illegality has an impact, in its position alone, on the application for an intrusion order.
- From my point of view, when the Magistrate's Court is asked to issue an order to penetrate computer material in a case where investigative actions were carried out in violation of the law, the consideration of illegality derives from two basic principles of Israeli law: the protection of basic constitutional rights and the preservation of the integrity of the judicial process. In circumstances in which there is no dispute that the investigative authority carried out an investigative action in violation of the law, a complete blocking of the possibility for the interrogee or a litigant to raise claims in this regard at the initial stage of the proceeding may amount to lending a hand to the investigative authority's improper conduct. Needless to say, following this path will lead to profound harm to both the fairness of the legal process and the public's trust in the courts.
- This is also important from the practical perspective of creating incentives for the proper conduct of the investigative bodies. Accepting the position that it is sufficient to examine the admissibility of the evidence obtained in the framework of the illegal search in the framework of the main proceeding, is liable to lead to the phenomenon of "whitewashing" evidence in the event that the investigation is conducted illegally. This is because it will always be possible to apply to the court retroactively for an intrusion order, and in this way "legalize the creep". There is no doubt that the privacy of the interrogee has already been violated by an illegal search of his mobile phone. It is precisely for this reason that the court must prevent further violation of the interrogee's privacy by issuing a retroactive intrusion order, in an "automatic" manner, which does not take into account the illegal action that has already been committed. It should be noted that creating incentives for the legal conduct of the investigative bodies is also important in those cases in which an indictment was ultimately not filed, and thus in any case the question of the invalidation of the evidence due to the manner in which it was obtained will not be discussed. It is also important even in cases where the person whose privacy is violated is not a party to the criminal proceeding.
- Even with regard to holding the hearing in the presence of both parties, I am in agreement with my colleague the President, apart from insisting that the matter be limited to "rare" cases. Indeed, the hearing in the presence of one party is the rule - this is evident from the legislation, the procedural tradition and even from the logic of the investigation stage. However, there is nothing that prevents the Magistrate's Court, within the scope of its general discretion with regard to the procedure, from ordering a hearing in the presence of both parties (see in this regard section 3 of the Criminal Procedure Law [Consolidated Version], 5742-1982, which states that "in any matter of procedure that is not provided for by statute, the court shall act in the manner that it deems best for the administration of justice"). In this matter as well, I would be careful not to determine that the court hearing the application must make use of this power only "in the most exceptional cases". It is sufficient for me to determine that this is an exception and not at all. The court must clarify everything necessary before it issues an order that is liable to violate a person's privacy, and when it believes that it is required to do so in the presence of both parties, it can order this. Without exhausting, it may be added that in those cases in which it appears from the material presented to the court that there was a defect in the investigation process prior to the filing of the application (for example, by way of conducting an illegal search), this may justify holding a hearing in the presence of both parties.
Another judicial review?
- I will admit and not be ashamed: Among the questions that were placed before us in the course of the additional hearing, the issue of additional judicial review of a decision given by the Magistrate's Court regarding the granting of an intrusion order into a computer or mobile phone aroused the greatest dilemma in my mind. My colleague the President pointed out in her judgment that the Criminal Procedure Ordinance did not regulate the issue of filing an appeal against a decision on the subject of granting an intrusion order. In this way, the Ordinance followed the "king's path" based on the well-known principle that the right of appeal or the right of appeal should be granted in legislation.
- This is indeed the result required by the applicable law, but in my opinion it raises a difficulty in terms of the proper protection of the constitutional right to privacy. This is because even if a decision is made that means a severe violation of the privacy of the suspect, the interrogee, or the owner of the device against the background of a previous illegal search, there will still be no way to try to revoke the evil of the decree. Indeed, in accordance with the outline outlined by the President in her judgment, the violation of privacy is likely to affect the main criminal proceeding down the road. However, in the absence of the possibility of appealing the decision in real time, there is acceptance of the very violation of privacy - which cannot be prevented or reduced. This is all the more so given the fact that we are not dealing with a person who is presumed to be a defendant - but rather a person who is a suspect or an interrogee only.
- It seems that there is no need to elaborate on the extent of the violation of privacy when it comes to intrusion into a computer or mobile phone. As my colleagues have also emphasized, today, a computer or mobile phone contains a huge amount of information about the lives of its owners - including personal correspondence, photos and videos, diary details, and more. The significance of exposing these contents, which may be the most private, sensitive, and intimate, to the eyes of foreign parties, let alone law enforcement agencies, cannot be underestimated. Recently, however, this Court discussed, in an expanded panel, the issue of mobile phone locating as part of the fight against the COVID-19 pandemic (HCJ 6732/20 The Association for Civil Rights in Israel v. Knesset [published in Nevo] (March 1,2021)). All the judges on the panel noted the severe violation of privacy involved in the operation of this tool - when the meaning of "intrusion" was, on the face of it, relatively narrow - receiving information regarding a person's location. In my opinion, I addressed this matter by stating as follows:
"A notice that a person receives about his presence in a certain place at a given time may have dramatic significance for him. In a sense, it is the complete opposite of the classic conception of privacy as "the right to be let alone." See: Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L.R. 193,195 (1890)). It is also the opposite of the perception of privacy as control... in the sense that it expresses an immediate loss of one's own control over information relating to one's own life. The data relating to a person's presence in a particular place at a certain time may be a matter that he wishes to sponsor - from an employer, family members or friends, and this is his right. Whatever his reasons for this. In this respect, the location reveals the lives of those concerned (both on the part of the confirmed patient and on the part of those who are vaccinated). And all this - with the flick of the sword, more precisely with the flick of a location" (ibid., at paragraph 13 of my opinion).