Without minimizing the violation of privacy involved in telephone location - a general search of a person's computer or phone involves dozens of times greater harm. Indeed, there is an important public interest on the agenda - law enforcement, prevention of criminal activity, and safeguarding public peace and security. However, this interest alone cannot allow for a disproportionate violation of the right to privacy.
- Moreover, the result of the lack of the right to appeal is in tension with the assumption that underpinned the hearing in the Urich case itself - in which an appeal was filed with the District Court, which was heard on its merits, and then a request for leave to appeal was heard in the Supreme Court. This procedural conduct was repeated in the additional round of litigation as well, but this time the state also filed an appeal against the Magistrate's Court's decision to the District Court. In fact, until now, the state, which is a "recurring player" in criminal proceedings, has been accustomed to object from time to time Magistrate's Court decisions regarding the issuance of an order to penetrate a computer or mobile phone, as it sees fit, and without casting any doubt on its right as a litigant to do so (see paragraphs 3 and 24(c) of the State's response to the petition for further hearing). See also, without exhausting: Israel Police Appeal (Tel Aviv) 33814-07-21 State of Israel v. Tabkin [published in Nevo] (July 15,2021); Other Order (Tel Aviv) 38322-07-20 Israel Police District Civil Case v. Anonymous [published in Nevo] (July 17,2020); Other Order (Tel Aviv) 38399-07-20 Israel Police v. Malul [published in Nevo] (July 19,2020)). In fact, as stated above, it was the state that filed one of the appeals in the Urich case with the District Court, in the second round of litigation (another appeal 39166-07-20 Shimon v. Petah Tikva Police Station (Sharon District) [published in Nevo] (July 21,2020)). It also seems that the state did not question the right of other litigants to appeal the decision that was made, and in any event, this was not argued before us (see, for example: Beer Sheva (Tel Aviv) 90868/00 Netvision Ltd. v. Israel Defense Forces - Military Police - Investigations - The National Unit for Special Investigations [published in Nevo] (June 22,2000); Another appeal (Center) 11845-08-20 Kopolovich v. State of Israel [published in Nevo] (May 9,2021)). I have not lost sight of the state's statement at this stage of the hearing that, in accordance with its position regarding the absence of the right to appeal, no further appeals will be filed on its behalf in the future. However, to a certain extent, it is precisely this statement that emphasizes the significant weight of the practice that was accepted until now. It is possible that this is one of those cases in which there was room to learn from the wisdom of action, in the sense of "Leave them to Israel. If there are no prophets, they are the sons of prophets... See the deed and remember the halakha" (Bavli Pesachim 66a).
- The truth can be told: in view of the great importance I attach to the possibility of judicial review before a higher court in the event of a serious dispute with respect to an order to infiltrate a computer or a mobile phone, the issue aroused a real dilemma in me, in the sense that I believed that there was room to find a case law solution that would enable a path of objection to such a decision and reduce the violation of the right to privacy. However, in the end, I came to the conclusion that such a solution could not stand in the present case - and I will explain why.
- At the outset, I will note that I cannot join the solution proposed in this context by my colleague Justice Y. Elron, who believes that the parties have the right to appeal. In my opinion, a decision regarding a computer intrusion order cannot be considered a "judgment" according to the tests used in this matter (see and compare: Criminal Appeal 3164/16 Anonymous v. State of Israel, paragraphs 29-33 [published in Nevo] (May 26,2016)). Moreover, even if it were a judgment, according to section 37(2) of the Courts Law [Consolidated Version], 5744-1984, it was an appeal on the right that must be heard before a panel of three judges, and hence the solution proposed by my colleague, of an appeal before a single judge (in accordance with section 37(c) of this law) cannot stand.
- At the same time, I considered the possibility of making use of the "call into the law" remedy (reading in) in order to uphold the validity of the legislation (see: High Court of Justice 721/94 El Al Israel Airlines Ltd. v. Danilovich, IsrSC 45(5) 749,768-767 (1994); High Court of Justice 5771/12 Moshe v. Committee for the Approval of Agreements for the Carrying of Embryos under the Agreements for the Carrying of Embryos (Approval of Agreement and Status of the Newborn) Law, 5756-1996, paragraphs 36-38 of the judgment of Judge (as she was then described) Hayut [published in Nevo] (September 18,2014)). Indeed, this is a constitutional tool of an exceptional nature, which the court uses only in rare cases, and with the necessary caution (see: High Court of Justice 3437/11 Dudian v. Knesset of Israel, IsrSC 66(1) 65,111 (2012); High Court of Justice 5555/18 Hasson v. Knesset of Israel, paragraph 42 of the judgment of President Hayut [published in Nevo] (July 8,2021)). However, it can be argued that in the circumstances of the case, it is required by the recognition of the elevation of the status of the constitutional right to privacy and from the conclusion that the granting of an intrusion order while completely closing the path to judicial review by a higher court amounts to a disproportionate infringement of this right. In this context, it is worth mentioning that the authority to conduct a search of a computer as well (beyond a search of premises) was granted for the first time only in 1995, after the enactment of the Basic Law: Human Dignity and Liberty (Section 23A, as is well known, to the Criminal Procedure Ordinance in the framework of Section 11 of the Computers Law, 5755-1995 (hereinafter: the Computers Law)). Moreover, as described by my colleague the President, another amendment from 2005 clarified that the terms of the order "shall be determined in such a manner as not to infringe on a person's privacy beyond what is required" (as instructed by section 23a(b) of the Criminal Procedure Ordinance, as currently drafted, following the Law to Amend the Criminal Procedure Ordinance (Arrest and Search) (Amendment No. 12) (Search and Seizure of Computers), 5765-2005). There is therefore no doubt that the arrangement that applies to these orders is required to meet the standards of the Basic Law.
- However, in the end, I came to the conclusion that there is no reason to use this tool in our case. Beyond the fact that this is a judicial tool that is not used as a matter of routine, its inadequacy in this case is essentially related to the great complexity of the issue and the fact that the answer to it cannot be found in a simple "reading" of the arrangement relating to the right to appeal in the laws of detention into the arrangement relating to computer intrusion orders. What is this about? The manner in which the possibility of appealing a decision regarding an intrusion order should be regulated raises both procedural and substantive questions.
- First, the question arises as to whether there is justification for establishing in this matter an arrangement of the right of appeal to the District Court and an appeal authority to the Supreme Court, as is customary in the laws of detention, or to suffice with leave to appeal only at the first stage. On the face of it, it may be held that in these circumstances it is more logical to grant only leave to appeal - thus, just as the Magistrate's Court judge is given discretion to hold a hearing in the presence of both parties, the District Court judge will also be given the discretion to examine whether this is an exceptional case that justifies review before another instance. However, as stated, this conclusion is different from the default set forth in the law with regard to appeals in detention proceedings.
- Second, there is a certain tension between the practice according to which a person whose computer or telephone has been ordered to be infiltrated does not have a vested right to be a party to the hearing of the application (since this is contingent on the discretion of the Magistrate's Court that heard the application) and the recognition of the right to appeal the decision to a higher court (where the appeal process is necessarily bilateral). Against this background, the question arises whether the right or the right to appeal will be granted only in a case where the Magistrate's Court ordered a hearing in the presence of both parties, or also in a case where a hearing was held ex parte. On the one hand, prima facie, when the hearing is held ex parte, there is no logic in granting the right of appeal, and even from a practical point of view, it is possible that the party concerned does not know at all about the decision. On the other hand, granting the right or permission to appeal only a decision made in the presence of both parties may create a "chilling effect" on the possibility of ordering a hearing in the presence of the parties.
- Third, another question that needs to be taken into account in the design of the relevant arrangement is whether there is room to grant the right or permission to appeal to both parties - both to the person in respect of whom the order was issued (or to a third party whose privacy the order violates his privacy) and to the investigating authority. On the one hand, if the request for an intrusion order is rejected by the court, the investigating authority can file a new request in accordance with the development of the investigation and new information justifying it. On the other hand, as a rule, it is accepted in our legal system that the arrangements relating to the filing of an appeal are symmetrical, and once this option is available to one party, it should not be denied to the opposing party.
- Providing an answer to these questions goes beyond the scope of providing judicial relief by way of a "reading into the law". The purpose of the Tzaftan is to clarify that the issue is too complex, too complex for judicial intervention, despite the real need to protect the rights of interrogees. In this regard, legislative regulation is required in a process in which all the aforementioned considerations and the various possibilities will be considered, examined by the legal counsel bodies and discussed in depth in the Knesset and its committees. Therefore, I have no choice but to join the present call of my colleague the President and my colleague Justice N. Sohlberg to the legislature to regulate the issue by proper, comprehensive legislation and adapted to the spirit of the times.
- Towards the end, I will add that until the matter is regulated by legislation, and in view of the complexity that has been presented, in my opinion there is room to take a less strict approach with regard to petitions that will be submitted to this Court sitting as the High Court of Justice against decisions concerning computer intrusion orders. As is well known, despite the fact that the High Court of Justice is empowered to grant "relief from justice" (by virtue of section 15(c) of the Basic Law: The Judiciary), the approach taken with regard to petitions concerning interim proceedings in the criminal field is very restrictive, and as a rule, this Court does not intervene in decisions of this kind, for reasons that have been clarified many times (see, for example, among many: High Court of Justice 7768/12 Charney v. Tel Aviv-Jaffa District Court, paragraph 4 [published in Nevo] (October 26,2012); High Court of Justice 1478/15 Gavriel v. Justice Meroz, para. 4 [published in Nevo] (March 1,2015); High Court of Justice 4295/18 Anonymous v. Jerusalem District Juvenile Court, para. 21 [published in Nevo] (July 22,2018)). However, there may be room for a less stringent approach with regard to petitions filed in this special context of computer intrusion orders, to the extent that the appeal remains blocked (see and compare: High Court of Justice 8183/17 Kahane v. State of Israel [published in Nevo] (October 24,2017). See also: High Court of Justice 841/19 State of Israel v. Tel Aviv District Court, paragraphs 14-15 [published in Nevo] (April 8,2019); High Court of Justice 4922/19 Naveh v. State of Israel - Central District Attorney's Office (Criminal), paragraphs 9-10 [published in Nevo] (December 9,2019)). It should be emphasized: in saying this, I do not mean to "break" the gates of the High Court of Justice to hear the petition whenever an order is issued to penetrate a computer or a mobile phone. Not at all. This applies only to exceptional cases, in which the violation of privacy is particularly severe and there is a real flaw in the conduct of the investigating authority. Only in such cases does the need to respond to the concrete violation in real time outweigh the important interests that underlie the rule of non-intervention of the High Court of Justice in decisions made in the framework of the criminal proceeding. This is a finding that is the lesser of two evils, and only as long as there is no legislative response to the difficulty raised by the customary law, which is not adapted to our time.
- The Computers Law was enacted more than 25 years ago. Entire eons in the field of computers have passed since then. The computers that stood before the legislature's eyes then and today are not the same computers, even if they are described by the same word. Suffice it to mention, in a nutshell, that in the years that have passed the use of computers has become more diverse, that the scope of computer memory is immeasurably extensive, and that in many cases intrusion orders even exceed the physical limits of the computer (for example, to "cloud" files). The great complexity of the issue, due to which it is not possible in this case to act as a "call into the law" as a response to the non-regulation of the possibility of appeal, emphasizes the need to update the law for today's computers and the reality of their use, preferably one hour earlier.
Judge