Then, as it is today, there is no doubt that reality requires that the Knesset be required to formulate a comprehensive arrangement that will establish explicit provisions relating to all aspects involved in a computer search. As noted above, such a bill (the Search and Seizure Bill) was formulated in the past after lengthy preparatory work and was even approved in the first reading, but since 2018 no legislative proceedings on the subject have been advanced. Without expressing a position on the content of the proposal, and in the absence of such a comprehensive arrangement, the proceedings before us further emphasize the need to delineate the considerations in light of which the investigative authorities and the courts must act, and as was ruled in a similar context: "Interpretation is a tool in the hands of the court, and it allows us to clarify the boundaries of the law, even if the language of the law itself is not changed" (Media Data, at p. 736). The use of interpretive tools for the purpose of clarifying the criteria that will guide the investigative authorities and the courts will make it possible to ensure, as far as possible, that the violation of privacy caused by a search of computer material is indeed proportionate and does not exceed what is required, as required by the legislature.
- In my view, three main junctures in the process of searching for computer materials require, in my view, a way of determining criteria and guiding considerations: (1) the stage of the submission of the search request by the investigative authorities; (2) the hearing and the court's decision on the application; (3) the execution of the search warrant.
In this context, it is appropriate to pay attention to the provisions that were enshrined - inter alia, at the request of the legislature - in various guidelines and procedures that are used by the investigative authorities in all matters relating to search proceedings (see: section 26(b) of the Ordinance; see and compare: The Matter of Media Data, at pp. 734-736; the Heinz case, at paragraphs 16-17). In fact, most of the criteria that will be detailed below are validity of instructions that already appear in the following guidelines and procedures: (1) The Investigations and Intelligence Division's Procedure "Request for a Search Order - Form 3097" (February 1,2014) (hereinafter: the Procedure for Request for Search), which deals with searches of homes and yards and not computers, but its provisions shed light on the proper format, in the eyes of the police, for requests for search warrants; (2) Directive of the State Attorney 7.14 "Principles of Action Regarding the Manner of Seizing, Searching, Copying and Perusing Computers and Computer Materials, Documenting Them and Making the Products Constituting 'Investigative Material' Available to the Defense for Review" (last updated March 24,2021) (hereinafter: the State Attorney's Directive); and (3) Procedure of the Police Investigations Division 03.300.035 "Procedure for Seizure and Search in Computer" (hereinafter: the Procedure for Searching in Computers), which came into effect on November 14,2020 and parts of which were permitted for public review in February 2021, which includes instructions regarding requests for search warrants in the computer and regarding the manner in which searches are conducted in accordance with the provisions of Section 26(b) of the Ordinance.