Additional Criminal Hearing 1062/21 Jonathan Urich v. State of Israel - part 7

(a)      Every person is entitled to privacy and the privacy of his life.

(b)      One does not enter a person's private domain without his consent.

(c)      A search is not conducted in a person's private possession, on his body, his body or his tools.

(d)      The secret of a person's discourse, his writings or his records are not violated.

47. In its ruling, this Court noted that the right to privacy is "one of the most important human rights" (Criminal Appeal 1302/92 State of Israel v. Nahmias, IsrSC 49(3) 309,353 (1995) (hereinafter: the Nahmias case)) and that it is "one of the freedoms that shape the character of the regime in Israel as a democratic regime" (Civil Appeals Authority 2558/16 Anonymous v.  Compensation Officer - Ministry of Defense, paragraph 39 of the judgment of Justice D.  Barak-Erez [published in Nevo] (November 5,2017)).  Taking into account the severe violation of privacy that may be caused as a result of a search of a person's computer or smartphone, it must be ensured that such an intrusion will not violate privacy beyond what is required, as the explicit provision of section 23a(b) of the Ordinance expresses, in practice, the test of proportionality in the limitation clause in the Basic Law: Human Dignity and Liberty.
48. Thus, the objective purpose of the Ordinance is to find a balance point that takes into account the public interest in the prevention of delinquency and the right of the victims of the offense, as well as of suspects, to conclude the investigation quickly and efficiently in an ever-changing reality, and on the other hand the obligation to refrain from disproportionate infringement of privacy (compare: The Matter of Media Data, at p. 772).  Against this background, we must examine what is the rule that should best promote the subjective and objective purposes underlying section 23A - holding a hearing on a request for a search of computer material in the presence of one party or both parties? This, inter alia, takes into account that Section 3 of the Criminal Procedure Law [Consolidated Version], 5742-1982 (hereinafter: the Criminal Procedure Law) grants the court the authority to act "in any matter of the procedure for which there is no provision in the statute [...] in the manner it deems best for the administration of justice."
49. The rule that best fulfills the purposes of the arrangement
50. In my view, the proper rule regarding requests to search computer material is to hold the hearing ex parte. This is both because this rule enables an optimal internal balance to be reached between the purposes of the search arrangement for computer material, and because of the difficulties inherent in establishing a rule according to which the hearing of requests to search for computer material will take place in the presence of the parties.

50. The balance point that the legislature established from the outset at the interrogation stage constitutes an increased violation of the rights of interrogees and third parties, due to the need to conduct a secret, efficient and expeditious investigation. This is expressed, inter alia, in the burden of proof imposed on the state at the interrogation stage as opposed to at the trial stage (compare, for example, section 13(a) of the Criminal Procedure Law (Enforcement Powers - Arrests), 5756-1996 (hereinafter: the Arrests Law), which relates to "reasonable suspicion", and section 3422(a) of the Penal Law, 5737-1977, which relates to "proof beyond a reasonable doubt"); the possibility of detracting from the right to consult with a lawyer at the interrogation stage (sections 34(d)-(f) of the Arrests Law); and the right to review the investigative material, which is granted only after the indictment has been filed, inter alia, due to the fear of disruption of the investigation (section 74 of the Criminal Procedure Law; Amit, at pp.  193,815 and 826-827; Criminal Appeals Authority 1230/18 Maliniak v.  Israel Police - ATGAR Unit, paragraph 11 [published in Nevo] (May 28,2018) (hereinafter: the Maliniak case)).  In addition, and due to the needs of the investigation, the scope of the protection established by the legislature in relation to the right of an interrogee to plead and in relation to his right to be present at a hearing in his case, is more limited than that given to the interrogee in the main proceeding, to the extent that an indictment is filed against him.  Thus, with regard to the trial stage, the Criminal Procedure Law explicitly states that "in the absence of any other provision in this law, a person shall not be tried for a criminal offense except before him" (section 126 of the Law), but a similar provision does not exist in relation to the investigation stage (see the Shimon case, at paragraph 7 of the opinion of Justice (as he was then called) Hendel).  Indeed, as noted above, at the interrogation stage, ex parte motions are routine, and many of the requested orders are issued without the suspects' knowledge and without giving them an opening (Melignac, at para.  11; Wismonsky, at p.  278).  Thus, for example, the court may order the detention of a person before the filing of an indictment in his absence, and the hearing of the application will generally take place behind closed doors - inter alia, in order to prevent the possibility of thwarting the detention (sections 12 and 15(h) of the Arrests Law; for more information, see: Rinat Kitay Sanjaro Detention: Deprivation of liberty prior to the verdict of judgment 307-308 (2011) (hereinafter: Kitay Sanjaro)).
51. Even with regard to the arrangements that are close to our case, and which relate to the collection of evidence by the investigating authorities, many of the requests are heard and decided ex parte. Thus, the practice with respect to requests for search warrants in Hatzerim is to hold a hearing ex parte (Harpaz and Golan, at p.  174; Harduf, at p.  65; in this context, see also the words of Justice (as he was then called) Hendel in the Shimon case (in paragraph 4 of his opinion) in relation to section 17B of the Youth Law (Adjudication, Punishment and Methods of Treatment), 5731-1971, from which it can be concluded that search warrants are being discussed ex parte; but on the other hand, see Justice Elron's position on the matter (in paragraph 34 of his opinion in the Shimon case)).  In addition, an order addressed to a person demanding the production of an object or document in accordance with section 43 of the Search Ordinance (which can also relate to computer material, in accordance with the definition of "object" in section 1 of the Ordinance), is also requested, as a rule, ex parte, without the suspect's knowledge and without giving him an opening (Miscellaneous Criminal Applications 5605/21 Shteiwi v.  Israel Police, para.  10 [published in Nevo] (September 9,2021); Nakdimon, at p.  301); and so are requests for wiretapping orders and requests for orders to receive communications data (see, respectively: section 6(b) of the Wiretapping Law and the matter of communications data, at p.  711).

In other words, the legislature believed that the infringement of the right to a plea was necessary at the investigative stage, but considered it to be balanced by means of judicial supervision of the conduct of the investigative authorities, both at the stage of issuing the order and retroactively, in a manner intended to ensure the proportionality of the infringement.  Indeed, the very existence of judicial review of the actions of an investigative authority - even if the review takes place ex parte - has an element of restraint vis-à-vis the authority, which assists in filtering out actions that deviate from reasonableness (see, in this context: Amir Kahane and Yuval Shani, Regulation of Online Surveillance in Israeli Law and Comparative Law 284 (Policy Research 123, Israel Democracy Institute, 2019)).  Thus, for example, the Wiretapping Law and the Criminal Procedure Law (Enforcement Powers - Communications Data), 5768-2007 (hereinafter: the Communications Data Law) set out conditions and purposes for which the court will permit an investigative authority to receive various data.  In these contexts, the court must consider the extent of the violation of privacy (section 6(a) of the Wiretapping Law and section 3(a) of the Communications Data Law); and in the laws themselves, the conditions that the court must specify in the order are set out in detail, including the identity of the person or facility in respect of which the request was approved and the period of validity of the order (sections 6(d)-(e) of the Wiretapping Law and section 3(h) of the Communications Data Law).  Even with regard to applications in which the law does not prescribe a detailed mechanism for judicial supervision, the judge must be convinced, based on detailed information and in the framework of an informed decision, that the order is indeed necessary and does not infringe on a person's rights beyond what is required (Shemesh, at p.  388; Harpaz and Golan, at p.  174; Wismonsky, at p.  278).

52. Alongside the existence of a judicial supervision mechanism, the interrogee or a third party has the option to argue retroactively against the investigative actions. If an indictment is filed against the person who claims flaws at the interrogation stage, the defendant can raise various arguments in the main criminal proceeding regarding the conduct of the investigating authorities in this context, and the court hearing the proceeding will determine the merits of these claims, particularly on the evidentiary level (High Court of Justice 9899/17 Maliniak v.  Israel Police, paragraphs 8-9 [published in Nevo] (January 4,2018); Amit, at p.  281).  In addition, and even in scenarios in which no indictment has been filed or the party injured by the investigation is not the defendant in the offense, it is possible to apply to an appropriate court for judicial relief outside of the criminal proceeding (see paragraph 83 for the completion of the argument on behalf of the state in further hearing, Urich; for examples of such proceedings, see: Civil Appeal 4584/10 State of Israel v.  Voucher [published in Nevo] (December 4,2012); Civil Case (District R) 19375-12-09 Salma v.  Ministry of Public Security [published in Nevo] (May 6,2015); Civil Case in Fast Trial (Shalom Beer Sheva) 16375-03-16 Gilad v.  State of Israel [published in Nevo] (December 4,2018)).  The possibility of making arguments retroactively does not provide a full response to the infringement of the right to a plea, but it contributes to ensuring its proportionality.
53. These two aspects - the existence of judicial supervision of the interrogation and the possibility of exhausting the right to a plea in later stages of the criminal proceeding or in other proceedings - are also relevant to my approach with respect to requests for search warrants for computer material. In this context, section 23a(b) of the Ordinance states that a court that grants a request for a search warrant is required to specify in the order "the purposes of the search and its conditions that will be determined in a manner that will not infringe on a person's privacy beyond what is required." Establishing a rule according to which the hearing of requests to search computer material will take place ex parte - under close judicial supervision and subject to the preservation of the claims relating to the search warrant and its products for a later stage - will make it possible to avoid excessive harm to the needs of the investigation, and at the same time will reduce the scope of the violation of the rights of interrogees and third parties.  Thus, it is also possible to reconcile the manner in which requests for search of computer material are heard and the manner in which similar requests are heard at the stage of investigation, and at the same time give expression to the unique aspects relating to requests for search of computer material through additional mechanisms that will apply to requests of this type, which will be detailed below.
54. This conclusion is sharpened in view of the difficulties inherent in the adoption of a rule of holding a hearing in the presence of the parties. Indeed, ensuring the ability of an interrogee or a third party to bring additional information before the court may help the judge to limit the search to the necessary minimum, and thus reduce the violation of privacy, while giving expression to the central place of the right to a plea in our system in general, and in criminal proceedings in particular (see: Miscellaneous Criminal Applications 4586/06 Halido v.  State of Israel, para.  7 [published in Nevo] (August 22,2006)).  However, such a rule raises significant difficulties in two aspects: first, the effectiveness of the investigation may be impaired due to the prolongation of the proceedings expected as a result of holding the hearing in the presence of the parties; Second, there is concern that the investigation will be thwarted, since the very disclosure of the intention to carry out the search may create possibilities for disrupting the investigation, for example by damaging the computer material and editing it remotely (Wismonsky, at p.
55. as to the impairment of the effectiveness of the investigation. In the framework of the completion of his argument, Shimon argues that the process of searching computer material - from the stage of seizure to the stage of reviewing the material - is by its very nature lengthy, and therefore granting a right of argument will not significantly extend the period of time that elapses in any case from the filing of the application to the actual execution of the search (in paragraph 4(d) of the completion of the argument).  Even if Shimon is correct in his argument that granting the right of plea will lead to only a moderate extension of each proceeding separately - and I do not believe that this argument is necessarily correct - consideration must be given in this context to the cumulative delay in clarifying all the search motions that will be filed.  Given the fact that hundreds of thousands of investigative files are opened in Israel each year and tens of thousands of requests for search warrants for computer material are filed (paragraph 24 of Justice Elron's opinion in the Shimon case), the existence of a full adversarial proceeding in the presence of both parties to each request (and at least in most of them) is liable to significantly impair the efficiency of the functioning of the investigative authorities, and impose on them a burden that they will find difficult to meet (see in this context the responses to MK Eitan's proposal in the minutes of meeting No. 419, quoted in paragraph 41 above).  This is true, of course, and even more so with regard to granting the right of argument to other parties relating to the computer material.  The interest in a quick and efficient conclusion of the investigation is in the interest of the victim of the offense and of the public at large, but it is also the interest of the interrogees, witnesses and third parties whose names are associated in the investigation.  The damage that may be caused by such delays is, therefore, extremely significant for all the parties concerned.
56. With regard to the disruption of the investigation, the parties to the proceedings before us disagreed on the question of the extent to which the possibility of editing material remotely is indeed simple and available to the interrogees. This is especially true with regard to interrogees who are not familiar with the secrets of technology; in relation to files stored on the computer itself and not on a remote server; and in a situation in which the interrogators disconnect the computer from the Internet at the moment of its seizure.  In this context, in my view, it is necessary to take into account the fact that the technology relating to storing and accessing information is developing and changing rapidly, so that even if at the current point in time there is difficulty in acting to change and delete material remotely (or if the possibility exists, but few can use it), it is not impossible that the situation will change in the near future.  In any event, although there are means that may reduce the fear of disruption of the investigation - including copying the computer material immediately after it is seized, and disconnecting the computer from the network in order to prevent remote access to it - they do not negate the fear of disruption of the investigation.  The exposure of the investigative actions prior to their execution, as well as the possibility of protracted litigation regarding a request for a search warrant on the computer - all of these create various opportunities for harming the investigation even in the absence of access to the computer material, including coordinating versions, concealing evidence, and evading the investigation (compare: Dan Bein, "The Right of a Suspect in Custody to a Defense Attorney in the Investigation Proceedings - Toward 'Compromise' Solutions" Hapraklit 39 108,112 (1990)).
57. Thus, the determination of a rule according to which the hearing of requests for search warrants for computer material will take place in the presence of both parties is inconsistent with the nature of the investigation stage, and it embodies a deviation from the practice that exists also in relation to other similar requests filed at this stage. It is not for nothing that, therefore, in other legal systems as well, the hearing of requests for search of computer material at the interrogation stage is held ex parte.  This was noted by my colleague Justice Hendel in the judgment in the Shimon case (in paragraphs 8(e) and 17 of his opinion and the references therein), referring to various arrangements in the United States, England and Canada, which allow the defendant to attack the legality of the search warrant and its products only after the investigation stage, so that the initial hearing of the request for search of computer material takes place ex parte (see: in the United States - United States v.  Christie, 717 F.3d 1156,1164 (10th Cir.  2013); In England - Police and Criminal Evidence Act 1984 §15(3); In Canada - R.  v.  Vu, [2013] 3 SCR 657; The defense also does not dispute this fact, as emerges from paragraphs 20-21 of its position in another hearing, Shimon).
58. An analysis of the legislative history and the objective purpose of the arrangement for the search of computer material teaches, therefore, that the rule that will best achieve the purpose of the arrangement is to hold the hearing of requests for a search of computer material ex parte. In this sense, I share the position of the majority in the Shimon case, according to which "although a hearing on the status of both parties may be helpful, the concern of disrupting the investigation and the extension of the proceeding justifies holding a hearing ex parte at this stage - with the utmost adherence to the provisions of the law on the part of the authority and the court - and nevertheless the claims of the interrogee are reserved for him at a later stage" (in paragraph 8(d) of the opinion of Justice (as he was then called) Hendel).
59. At the same time, I am of the opinion that due to the unique characteristics of the computer search - and in particular the concern of a disproportionate infringement of the right to privacy - there is merit in the defense's argument that to the extent that it is determined that the hearing of requests for search warrants on a computer will take place ex parte, "the existence of other appropriate substantive guarantees must be determined at this stage, inter alia by establishing a system of checks and balances that will enable the court to exercise its role in protecting the rights of the individual [...]" (In paragraph 15 of the defense's position in another hearing, Shimon said). The legislature itself was also of the opinion that there was a need to establish a unique arrangement for the hearing of such requests for search warrants, and in particular the need to ensure that the violation of privacy does not exceed what is required (section 23a(b) of the Ordinance).  Therefore, in addition to the existing mechanisms in relation to other requests that are being heard ex parte at the investigation stage, I saw fit to detail a number of additional mechanisms, which are unique to requests to search computer material, by which it is possible, in my opinion, to ensure that the violation of individual rights resulting from the ex parte hearing of the application will not exceed what is required.
60. Mechanisms for Ensuring the Proportionality of the Infringement of Individual Rights
61. As has been held in the past, "the court is in charge of the process of discovering the truth and doing justice in the criminal proceeding, and it is its duty to achieve these goals without disproportionate infringement of the rights of the accused" (Issacharov, at p. 542).  Therefore, when determining the scope of the rule regarding the manner in which requests for search warrants on a computer are discussed, the principle of proportionality that is explicitly enshrined in section 23a(b) of the Ordinance and more generally in the limitation clause in the Basic Law: Human Dignity and Liberty must be taken into account (see and compare: Criminal Appeal 7826/96 Reich v.  State of Israel, IsrSC 51(1) 481,491 (1997); High Court of Justice 2605/05 Academic Center for Law and Business, Human Rights Division v.  Minister of Finance, IsrSC 66(2) 545,654 (2009); Criminal Appeal 6026/11 Tamtawi v.  State of Israel, paragraphs 79-80 [published in Nevo] (August 24,2015); Aharon Barak, "The Constitutionalization of the Legal System in the Wake of the Basic Laws and its Implications for Criminal Law (Substantive and Procedural), " 13 Law Studies 5,15-13 (1996); Karp, at pp.  111-120).  It must be ensured that within the framework of the rule that will be determined, the infringement of rights - which is intended for the proper purpose of promoting the criminal investigation, with all the interests and rights involved - will not exceed what is required in the circumstances of the case.
62. In our case, I am of the opinion that at this time, and in the absence of concrete legislation on the subject, it is possible to reduce the infringement of the rights of interrogees and third parties in two ways: first, by setting standards for the conduct of the investigating authorities and for the judicial discretion of the trial courts in the framework of the hearing of requests for search warrants for computer material; and second, by exercising the authority of the court hearing a request for a search warrant to order, in exceptional and unique cases, that a certain hearing be held in the presence of both parties.

C.1.  Establishing standards for the conduct of the investigative authorities and for the exercise of judicial discretion in requests for search warrants for computer material

62. Sections 23 and 23A of the Ordinance are worded in laconic language and do not include details regarding the considerations that the investigating authorities must consider in the filing of a request for a search of computer material, or in relation to the details that they must specify in the application (see paragraph 24 of Justice Sohlberg's opinion in the Urich II case). In addition, these sections hardly relate to all the considerations that the court must consider when deciding on a request for a search of computer material, except for the need to specify "the purposes of the search and its conditions that will be determined in a manner that will not infringe on a person's privacy beyond what is required." This, as noted, is in contrast to the detailed arrangements set forth in the Communications Data Law and the Wiretapping Law, which relate more extensively to the details that must be included in the application, as well as to considerations that the court is obligated to consider in the course of its hearing (the Communications Data Matter, at pp.  725-729).  It follows, therefore, that although a search of computer material usually involves a serious violation of privacy - which, in certain circumstances, may be more severe than that caused by wiretapping or receiving communications data, due to the potential for exposure to the entirety of the information stored on the personal device - this action is currently done, in practice, almost without any direction on the part of the legislature (see paragraph 27 of the opinion of Justice Sohlberg in the Urich II case).
63. Already more than a decade ago, this Court noted the need for a comprehensive regulation of the laws of searching for computer material, noting:

"Due to the potential for infringement of individual rights when infiltrating computer material, such an arrangement is essential, and therefore it should be completed soon [...] The complexity and sensitivity of the issue require that the adaptation of the law to technological innovations and the potential harm that technology entails in its wake should be done not only seriously and responsibly, but also with the appropriate speed" (Heinz case, at paragraph 17; see also: Nimrod Kozlovsky, Computer and Legal Procedure 54 (2000), where the need was emphasized for enacting provisions that would provide "guiding tools in the hands of law enforcement authorities and the courts" regarding the manner of conducting a computer search).