Snapshots from your last romantic getaway, text messages with friends and family, email addresses, medical information – all this and more can be found on nearly every cell phone, and the Military Police Criminal Investigations Division has been making good use of it. Cell phones are often taken from soldiers under investigation and then thoroughly searched, even without court approval.
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The military police did not provide Haaretz with statistics on the scope on the phenomenon, but it is apparently quite a common practice in relation to suspected drug offenses. A sample survey done by the Military Defender’s Office found that in 25 out of 30 recent drug cases, a cell phone search was done without any prior judicial oversight.
Sources familiar with the military legal system say the investigators usually ask the soldier being questioned to hand over his cell phone so they can search it. Refusal to cooperate could be used against the soldier if his case goes to court.
Most soldiers aren’t aware of just how much they are exposing themselves by giving up their phones. The investigators will be able to see every text message, WhatsApp chat, picture or email saved in the phone, and they can often also retrieve deleted messages as well as gain access to the owner’s Facebook page.
In fact, soldiers being investigated voluntarily provide the information by signing a single document that refers to this investigative action as a “declaration of consent to confiscation, search of, and continued penetration of computer material.” The soldier consents “for the military police CID to seize his cell phone … to penetrate the computer material, including for the purposes of review, producing output and any other action deemed necessary to protect evidence for a criminal proceeding.”
Most soldiers are unaware that any item of information found on their phone could be used against them.
“A cell phone search, if done by consent, is unlimited,” chief military defense attorney Col. Asher Halperin says. “If the investigators find a picture of violence, of invasion of privacy or of sex offenses, they’ll investigate that, too.”
The fundamental question of whether information found in the course of a consensual cell phone search can serve as evidence is now being considered for the first time by a military court. A corresponding question is whether a court order is needed to approve such a search.
The case being heard in Jaffa Military Court concerns a soldier in the Home Front Command suspected of drug offenses. His military defense lawyers say he cooperated fully with the investigation, denied the charges and provided a urine sample that showed no traces of drugs in his body.
The investigators obtained the soldier’s consent to search his smartphone. They found some six month old messages indicating that the soldier tried to help some friends who asked him to get drugs. The old messages served as evidentiary basis for charging him with drug offenses.
The soldier’s lawyer, Maj. Adi Eisner of the Military Defender’s Office, says this evidence should be thrown out because it was not legally obtained, as the law doesn’t allow for cell phone searches without a court order.
Eisner also cites the invasion of privacy. The smartphone allows access to personal documents and information unrelated to the investigation, and the search could also infringe on doctor-patient or lawyer-client confidentiality.
The military prosecution argues that a signature on the consent form for the cell phone search amounts to permission to invade the subject’s privacy.
Col. Maya Heller, president of the Jaffa Military Court, heard the case. Her ruling, which observers say could impact interrogations beyond the Israel Defense Forces as well, is expected soon.
“An investigator used to have to go to a judge and request a warrant to confiscate the subject’s computer in order to discover documents that could shed light on suspected offenses. Now they’ve found a much easier method for collecting evidence,” says Col. Halperin. “A person has basic rights which mustn’t be infringed. The potential for invasion of privacy in a cell phone search is very high, but the right to privacy is one of the soldier’s most basic rights.”
The IDF Spokesman’s Office responded: “As in Israeli society, within the IDF there is some incidence of drug use. The IDF is fighting to stamp this out, with intensive educational activity as well as intelligence and investigative efforts by the military police. Given the nature of the issue, we cannot elaborate on these efforts. The issue of cell phone searches is a complex one, which is currently being considered in court.”