Court Criticizes Police but Allows Phone Search of Netanyahu Aides That Begun Without a Warrant

The cellphones belong to aides of Netanyahu who are being investigated for harassing a prosecution witness in one of the three pending criminal cases against the former prime minister

Chen Maanit
Chen Maanit
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Urich and Golan outside the Prime Minister office in 2019
Urich and Golan outside the Prime Minister office in 2019.Credit: Ohad Zwigenberg
Chen Maanit
Chen Maanit

Israel’s Supreme Court ruled on Tuesday that the police could continue to search suspects’ cellphones and computers, even if the searches had been initiated without a proper court order.

The decision was delivered by an expanded panel of nine justices in a case challenging the illegal searches of cellphones belonging to Yonatan Urich and Ofer Golan, two aides to Benjamin Netanyahu, who was prime minister at the time. The two were being investigated for harassing Shlomo Filber, a prosecution witness in one of the three pending criminal cases against the former prime minister that are currently being tried in Jerusalem District Court.

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The investigation related to suspicions that in the run-up to the September 2019 Knesset election, Urich and Golan, along with others, had set up loudspeakers outside Shlomo Filber’s home from which they broadcast condemnation of Filber. The investigation against them was then suspended pending approval of the searches.

In January 2020, the Supreme Court ruled that the search could be conducted, but the two aides asked the court to hold another hearing to rule on whether a search could even be continued if it  had initially been undertaken illegally, without a warrant.

The court was critical of the conduct of the police in the case, saying that “this [ruling] does not detract from what was wrong with the conduct of the investigating authority in the case of [Urich and Golan], and it is to be expected that such cases will not reoccur.” 

Shlomo Filber in court in 2018.Credit: Moti Milrod

Tuesday’s ruling dealt with three issues relating to searches of cellphones and computers in criminal cases: whether a court is obligated to hold a hearing in the presence of one side or both sides on a request for a search warrant; whether either of the sides is entitled to appeal the court’s decision; and what the status is of an illegal, warrantless search of a cellphone or computer.

The third question was dealt with in regard to the investigation of a complaint filed against Urich, Golan and two other Netanyahu advisers, Yossi Shalom and Israel Einhorn, for harassing Filber near his home.

During the investigation of Urich, a search of his cellphone was conducted with his consent but without a court order and without making clear to the suspects that they had the right to refuse. When the police subsequently sought a court order, the suspects opposed it. 

The Supreme Court ruled that the hearing on a request for a search that is submitted at the stage of a police investigation could take place without the presence of the suspect, in part over concern that a hearing in the presence of all of those involved would obstruct and complicate the criminal investigation and that there is no basis for permitting an appeal of a court decision of that kind. Nevertheless, the court ruled that in the most extenuating of cases, in which a court finds the presence of another party necessary to come to a decision, the court would have the authority to hold a hearing in the presence of all the parties involved.

To balance the infringement on an absent party’s right to be heard, to ensure that any violation of a party’s right to privacy is proportionate and to enable active judicial oversight of the later stages of the search, the Supreme Court set down a series of criteria that the criminal investigators and the courts are required to meet before approving the search of a computer.

In that context, the Supreme Court ruled that any request for such a search must contain detailed information about the aim of the search, the device to be searched and how the police obtained the device (if it was in fact seized). The Supreme Court also required that the request contain a statement regarding whether an illegal search had been conducted prior to the request for a search warrant and the scope of the material that investigators are seeking.

The Supreme Court required that when a court receives a request for a search warrant of such a device, it must consider the aim of the search, the scope of the violation of privacy, the severity of the alleged offense and other considerations relating to the nature of the investigation and the identity of the person whose device is being searched (for example, whether it is a suspect, a witness, or someone who has submitted a complaint as a victim or a professional who has a duty of confidentiality). In the course of the investigation, investigators have an obligation to document all of their actions in a manner that will enable oversight of the way in which the search was carried out.

With regard to the question of the impact of an illegal search on a later request to search the same device, the Supreme Court ruled that it is only in exceptional and rare cases that it should be the only basis for rejecting a request for a search. “The existing legislation with regard to everything related to the search of computers is lagging behind the technological reality,” the Supreme Court acknowledged. The court called upon the Knesset to enact comprehensive legislation on the subject.

In a majority Supreme Court ruling from January 2021, Justice Noam Solberg and George Karra expressed the view that the cellphones of Netanyahu’s aides could in fact be searched. Justice Hanan Melcer dissented.

Nevertheless, the court was critical of the conduct of the police in the case, because the police investigators had conducted illegal searches of their phones. The court heard the issue on appeal from a decision of a district court, which ruled that the police could conduct a search of the phones, even though it was conducted without a warrant and included the taking of photos of private correspondence unrelated to the investigation.

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