Cellphones May Be Searched Without Warrant, Israel's Attorney General Says

Avichai Mendelblit supports military prosecutors, who want Supreme Court to overrule decision barring IDF from searching soldiers’ phones

A military policeman looks at his cellphone, 2014.
David Bachar

Attorney General Avichai Mendelblit has issued a legal opinion allowing in-depth searches of suspects’ cellphones, even without a warrant, though the suspect must consent to the search.

Mendelblit write the opinion regarding an appeal filed by military prosecutors to the Supreme Court on conducting searches of soldiers' phones without a warrant.

Military prosecutors want the court to overrule the military court of appeals, which ruled in November 2016 that extracting information from a soldier’s phone using laboratory techniques, based only on the soldier’s consent, was illegal.

Mendelblit wrote that the military court of appeals made a significant mistake since the suspect’s permission to carry out the cellphone search provides the authority to do so, even without a judicial search warrant.

Once someone under investigation agrees to such a search, they waive their right to privacy, said Mendelblit. If the suspect gives informed consent (with or without limitations), a search warrant becomes unnecessary. The use of a search warrant is not the only way to conduct a legal search of a cellphone, added the attorney general.

The Supreme Court will hold a hearing on the matter on Monday, with the court's president, Miriam Naor, heading the tribunal.

Both the military and civilian public defense told the court that such warrantless searches went too far. As opposed to Mendelblit, lawyers Maj. (res.) Adi Rittigshtain Eisner and Capt. Omer Knobler argued it was unlikely that young soldiers are capable of providing informed consent in such cases.

Rittigshtain Eisner's successful appeal of the conviction of B., who was acquitted of various drug charges because the evidence against him was obtained via a lab search of his phone without a warrant, led to the November 2016 military court of appeals ruling. The court said that manual searches of a soldier’s cellphone without a warrant are permissible if the soldier agrees, but laboratory searches always require a warrant, even with consent.

The ruling greatly concerned military prosecutors because it could lead to acquittals in many pending cases against soldiers.

The military prosecutors asked the Supreme Court to rule on two main issues. First, can investigators search a cellphone without a warrant if the suspect consents? And second, if so, what information do investigators need to give the suspect to ensure that he is granting informed consent?

In its request, the prosecution argued that requiring a warrant for every cellphone search would impose a significant burden on both investigators and the courts. It would also impede investigations and even harm the suspects themselves, the request said.

Moreover, according to the military prosecutors, the distinction the appellate court drew between manual and laboratory searches was baseless. They said that even manual searches by a trained investigator are comprehensive, making the difference between the two types insignificant. Nevertheless, the prosecution acknowledged, lab searches do have some advantages, among other reasons because they can “give a complete picture of the relevant material and its context.”

This is precisely why military defense attorneys object to warrantless searches. Given the vast information now stored on cellphones – including intimate pictures, medical records and even confidential discussions protected by attorney-client privilege – cellphone searches constitute a massive invasion of privacy that is justifiable only with a warrant, they argued.

State Prosecutor Shai Nitzan has backed the military prosecutors’ appeal because the ruling has implications for civilian cases as well.

According to the Public Defender’s Office, the issue is one of major importance, and now for the first time the Supreme Court will have define under what conditions such cellphone searches can be made. In a brief the office filed in the case, it said the existing law concerning computer searches should also be applied to cellphones because of the vast damage and violation of privacy that such searches could cause.

The Military Defender’s Office presented data on the scope of such searches in 2015, according to which military investigators carried out 1,513 searches of soldiers’ cellphones. This shows how routine these searches are, the office stated in its brief, in opposition to Mendelblit’s opinion, and that they certainly couldn't have been conducted based only on probable cause.