(Photo: Jonathan Zindel / Flash 90)
A blow to Netanyahu’s advisers and, in fact, to interrogees wherever they are, the High Court has approved the illegal search carried out on their smartphones, in an investigation for harassment of Shlomo Pilber.
It will be recalled that Netanyahu’s media advisers, Ofer Golan and Yonatan Orich, were questioned on suspicion of harassing state witness Pilber, by ordering a Breslav vehicle to his home, which would be called out against him. Pilber was not at home at the time of the “harassment” but the police and prosecutors decided to summon the two for questioning, during which Orich’s phone was taken and probed, without a court order.
Orch and Golan’s attorneys appealed the legality of the search, which was accepted in the district court, but on appeal by the prosecution, the Supreme Court reversed the decision and approved the search retrospectively. The interrogees submitted a request for a retrial, and now nine High Court judges have ruled in favor of the possibility of probing without an order.
The court statement said: “An expanded panel of nine Supreme Court justices today ruled, by a majority, that the hearing on a search for computer material (including a smartphone) filed at the police interrogation stage will generally take place unilaterally and that there is no room for a court decision on such a request.
To balance the violation of the right to an argument, ensure the proportionality of the invasion of privacy and allow for effective judicial review of the search process at later stages, the court set a set of criteria that investigative authorities and courts are required to meet before approving a computer search application.
The search is invalid – but will not be rejected
It was further determined that an illegal search carried out by the investigators on a computer or smartphone is a consideration that must be taken into account if an application for a search warrant is subsequently submitted on the same device, but only in exceptional and rare cases will this consideration be an exclusive consideration.
The court insisted that the existing legislation regarding computer searches is based on the technological reality and called for a comprehensive regulation of the issue by the legislature – preferably one hour earlier. “
Thus, in your case, the judges ruled: “Although the initial search of the applicants’ mobile phones was carried out without a court order and in violation of the law, an examination of all the relevant considerations shows that this defect does not justify the rejection of the requests to search their phones. This does not detract from what is wrong with the conduct of the investigating authority in the applicants’ case in the Orich case, and it is to be expected that such cases will not recur. “
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