C.1.A Stage of Submission of the Application by the Investigating Authorities
- A request for a search warrant on a computer may be submitted in one of the following scenarios: before the computer has been seized by the authorities in accordance with section 32 of the Ordinance, with the intention that the search warrant will serve as a basis for seizure; after the computer has been seized and is in the hands of the authorities; or when the computer has not been seized and the authorities do not intend to seize it (in this last context, see p. 3, paragraph 6 of the State Attorney's Directive, and section 11(c)(2) of the Computer Search Procedure). The request may be formulated in a free text format, but in many cases it is submitted in the form of an online form. This form includes several options regarding the need for a search, with the applicant marking one or more of the options, and it also includes an opening for adding free text regarding the details of the object and the circumstances of the case.
- In view of the large number of requests submitted for search warrants on the computer and the judicial challenge involved in examining them in the tight timeframe resulting from the constraints of the investigation (see Criminal Case (Tel Aviv District) 40206/05 State of Israel v. Philosof, paragraph 7(a) [published in Nevo] (February 5,2007) (hereinafter: the Philosof case); criminal case (Shalom Ker) 15812-06-13 State of Israel v. Sasson, para. 34 [published in Nevo] (February 10,2014; see also paragraph 48 of Justice Sohlberg's opinion in the Urich II case) - it must be ensured that the search request is as detailed and informative as possible, in order to enable the optimal judicial decision to be made as quickly as possible. This conclusion is also consistent with the way in which the police themselves perceive its duty in similar contexts: in accordance with the procedure for a search request (which, as stated, deals with searches of homes and premises), the request must be "correct and accurate", specify "the evidence or information for which the search is sought" and "refrain from general formulation". The procedure also emphasizes that a request for a search warrant is made "under warning", similar to the submission of an affidavit or testimony to the court (sections 3(a)(3)-(4) of the procedure).
- Another point that derives from the provisions of the Ordinance and is already reflected in the guidelines and procedures is that the person requesting the order is required to delimit the requested search as much as possible. In other words, the desire to minimize the violation of privacy must be taken into account by the authorities both with regard to the decision to file a request for a search warrant and with regard to the scope of the requested intrusion. Thus, in the State Attorney's directive, it is clarified that "the investigating authorities must consider requesting orders to penetrate computer material that will be qualified, to the extent possible, in terms of the scope of information permitted for review and production, " as long as it is possible to do so "without prejudice to the effectiveness" of the search (Section 5 of the State Attorney's Directive). The need to reduce the requested search can also be learned from the provisions that regulate the possibility of applying to the court for a request to change the definitions of a search warrant, for example, following developments in the investigation or due to suspicion of the commission of additional offenses (section 7 of the State Attorney's directive; sections 4(a)(11) and 4(a)(13) of the computer search procedure). In other words, the very possibility of requesting the expansion of the search at a later stage indicates the need to reduce the search in the first place. This is therefore a kind of "preliminary control" and internal screening on the part of the investigating authorities, even before the judicial decision on the application is made (see: Wismonsky, at p. 319).
- In view of all of the above, I am of the opinion that in order to ensure the proportionality of the violation of the right to privacy, as required by section 23A of the Ordinance, an application for a search warrant on a computer must include, at a minimum, the following information details:
- the existence of one of the grounds for the search listed in section 23 of the Ordinance (see also: section 4(a)(3) of the computer search procedure);