Israel's High Court Rejects Warrantless Cellphone Searches

If such searches are necessary, then legislators should enact a law, says Supreme Court President Miriam Naor

An Israeli soldier uses a cell phone on a base, March 25, 2016.
Emil Salman

Israel's Supreme Court on Monday decided that the existing law does not allow for a phone to be searched without a warrant. The court's president, Miriam Naor, rejected the appeal made by the military prosecution – and the position of Israel's attorney general, Avichai Mendelblit.

The issue at stake – how the authorities may search a person’s cellphone – applies to everyone, though the specific case involved the military.

Naor sided with the military appellate court, which in November of last year handed down a ruling outlawing such searches, which the military prosecution appealed to the Supreme Court. On Sunday, Mendelblit sided with the military prosecution and submitted a legal opinion which said that searches of cellphones, with the suspect's consent, can be conducted without a warrant.

Mendelblit had stated that if a person agrees to having his phone searched, he has waived his right to privacy. Naor, however, said that the issue of cellphone searches and warrants is a knotty one that requires balance, and if such searches are necessary in the first place, then legislators should enact a law. “Wouldn’t that be simpler than this symposium?” she asked rhetorically.

Naor did not get into the legal implications of the issue at stake, saying that it was complicated. “I am not stating my opinion, but there are arguments this way and that,” she said. "Entering a phone amounts to a lot more than entering a house. It’s entering deep into the soul.”

In 2015, a military court authorized searching soldiers’ cellphones without warrants. The decision was appealed, and the November 2016 ruling overturned the authorization for warrantless searches. At the Supreme Court, the defense was represented by Maj. (res.) Adi Rittigshtain Eisner and Capt. Omer Knobler, who argued that young soldiers were not capable of providing informed consent in such cases.

After Monday's ruling, Israeli army policy will remain unchanged: A soldier’s phone may not be searched without a court order. For the time being, Naor remarked, whether a soldier’s consent to have his phone searched is sufficient will have to remain theoretical.