Right to Privacy and Computers and Cellular Devices Search Warrants

Barnea Jaffa Lande & Co.
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On January 11, 2022, the Israeli Supreme Court, in an expanded panel of nine justices, prescribed a set of rules concerning procedures and judicial discretion on the granting of search warrants of computers and cellular devices as part of an investigation. 

This is an important and necessary framework. Until now, despite the multitude of police applications for such search warrants, no set of legislated rules regulated this issue. The last amendment to the relevant section of law dates to 2005 before smartphones entered our lives.

Inter alia, the various courts have acted until now without any procedures for deliberating these applications, without clear rules delineating the judicial discretion when granting such search warrants, and without rules about how to object to a decision on these applications.

The Supreme Court rectified this deficiency, which resulted in ambiguity and a lack of uniformity in court rulings. It prescribed binding rules that strike a balance between maintaining investigative effectiveness and preventing obstruction of justice and the potential for privacy violations during these searches. We note such potential is infinitely higher here than during “traditional” searches of a person’s home and belongings. 

Where Was There No Real Innovation?

As a rule, Israeli courts are to hold hearings of applications to grant search warrants of computers and cellular devices in the presence of the investigative authority only. Courts will also issue directives to the investigative authority and other courts to minimize privacy infringement. 

The Supreme Court ruled to hold the hearing of an application to grant a search warrant of a computer or a cellular device ex parte (in the presence of the investigative authority). This will be the rule except in exceptional and unique instances, when the presence of another party is necessary to reach a decision on the application. (Examples of such instances include when the application to search the computer is for a professional who enjoys privilege by law, when partial or inaccurate information was presented to the court, or when some defect tainted the investigative authority’s conduct.)  

Where Was There Innovation?

The Supreme Court ruled that, due to the unique characteristics of searches of computers and cellular devices, Courts and Investigative Authorities must take additional measures to ensure the harm to an individual’s rights (resulting from holding the hearing ex parte), does not exceed only what is necessary.

The Supreme Court ruled that applications for search warrants must be as detailed, informative, and delineated as possible. They also must include particular details. This constitutes an important innovation since the applications currently submitted by the police are extremely laconic and, as a result, very broad in scope. If the application does not fulfill these criteria, the Supreme Court ruled the court should consider rejecting the application without deliberating it on its merits, in order to allow the authorities to reapply with a corrected version.

The Supreme Court issued directives to courts deliberating search warrant applications. Inter alia, the new ruling prescribes that courts have a duty to ascertain whether the application is sufficiently delineated and limits the infringement of privacy to the extent possible. They should also consider the very justification for issuing the search warrant. Accordingly, the Supreme Court defined various considerations courts may take into account when deliberating an application. (These do not constitute a closed list.) Considerations include the gravity of the offense in respect of which the warrant is being requested and the magnitude of the harm that could be caused because of the violation of the individual’s privacy. Furthermore, if an application for a search warrant is accepted, courts must set guidelines concerning minimizing the scope of the search warrant and making it as explicit as possible. 

Additional Innovation: No Right to Appeal during the Investigative Proceeding 

To preserve the speed and effectiveness of investigations, and given concerns about obstruction of justice and the possibility of objections to a search warrant being raised during the main proceeding, the Supreme Court added another element to its ruling. It held suspects would have no right to object to a court’s decision on an application to grant a search warrant of a computer or cellular device during the investigative stage. This may not occur by way of an objection or direct appeal of the decision, by way of an indirect objection at the time of the application for the search warrant, by way of an objection regarding the return of the seized devices, or by way of submitting a motion to rescind the decision of the court that issued the search warrant. 

We note that the Hon. Judge Daphne Barak-Erez stated, in a dissenting opinion on this issue, that it is important to allow the filing of appeals to the Supreme Court against decisions concerning search warrants for computers in exceptional cases of extreme violation of privacy and when, prima facie, there was substantive misconduct on the part of the investigative authority.  

Prior Illegal Search to Be a Factor for Rejecting a Search Warrant Application

The Supreme Court ruled that if the investigative authority carried out an illegal search of the same computer or cellular device prior to the application for a search warrant, this constitutes a factor to consider when deciding whether to issue a search warrant. Moreover, in exceptional instances where the investigative authority’s conduct grossly trampled the principle of the rule of law and the right to privacy, this will be the sole consideration for rejecting the application.

Conclusions

Although the hearing of an application for a search warrant of a computer or cellular device will largely be held without the owners of the devices present, and notwithstanding the inability to object to a decision to grant such a search warrant, this is a ruling that issues a clear message to the police and to the courts. They must conduct themselves with the utmost care to protect the rights of owners of computers or cellular devices, considering the unique sensitivity of these searches. The ruling also conveys an additional message to suspects who own computers or cellular devices. They can and must insist on the protection of their rights.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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