Despite Promises, IDF Still Questions Soldiers Who Refuse to Let Military Search Their Phones

Military Advocate General agreed in March to amend regulation to comply with state prosecution.

Nir Kafri

The Israel Defense Forces is still questioning soldiers who refuse to let their cellphones be searched, despite having promised not to do so.

Last week, military police officers asked a soldier being questioned on suspicion of committing drug offenses for his cellphone’s lock code in order to search it. He refused to divulge it, and was held for a few hours before being released.

The next day he was summoned for questioning over a completely different offense — obstruction of justice, for refusing to allow the search of his phone.

It turns out this case isn’t unique. In the past few weeks, several other soldiers who refused to divulge their cellphone lock codes have been questioned on suspicion of obstruction of justice or of disobeying a lawful order.

Military defense attorneys say it’s a tactic for applying additional, improper pressure on soldiers who are under investigation for other offenses.

The IDF conducts over 2,000 searches of soldiers’ phones every year, including in cases involving relatively simple offenses, like driving a vehicle without permission or without a suitable license.

In March, the Military Advocate General’s Corps announced that it would amend the regulation allowing soldiers’ cellphones to be searched, so that the extent of the search was commensurate with the severity of the suspected offense.

MAG said the new regulation would comply with State Prosecutor Shai Nitzan’s opinion that cellphone searches should require either the suspect’s consent or a court order. It also said the change would be implemented “in the near future.”

But more than eight months later, the regulation still hasn’t been amended and military police officers continue to search soldiers’ cellphones freely.

The IDF Spokesman’s Unit did not respond to a request to comment on why the rule has not been changed.

Some of the proposed changes in the regulation are supposed to address what happens if a soldier refuses to let investigators search his phone.

Among other things, the new rule is supposed to require the investigator to explain to the soldier the extent of the planned search of the cellphone and allow the soldier to agree to a search as long as it was limited in extent.

The amendment is also supposed to prohibit the questioning of soldiers who refused to divulge their lock codes on suspicion of obstruction of justice, though they could be warned that their refusal to give their lock codes could hurt their case.

In practice, however, soldiers who refuse to divulge their cellphone lock codes are still being questioned on suspicion of obstruction of justice, as in the incident last week.

Col. Asher Halperin, the head of the IDF’s Military Trial Defense Service, told Haaretz that this violates the MAG promise and constitutes undue pressure on the suspect soldiers.

“The military regulation should have been amended eight months ago, and there’s no place for soldiers to be investigated as suspects, under caution, because of their refusal to divulge their passwords,” Halperin said.

“This ongoing discrimination between soldiers and civilians with regard to searches can’t be justified. Therefore, we’ve informed the state prosecution and the military prosecution that if an egalitarian regulation doesn’t come into force in the next few weeks, we’ll be forced to petition the High Court of Justice on this issue,” Halperin said.

In a statement, the IDF Spokesman’s Unit said that amendments to the regulations on searching the cellphones of soldiers who are suspected of criminal activity are in the process of being drafted, and will be published once they are completed.

With regard to the case cited above, the spokesman’s office said it could not comment because it is still under investigation by the military police.