In a highly unusual move, the military prosecution is seeking to appeal to the Supreme Court against a ruling by the Military Court of Appeals which held that searching a soldier’s cellphone in a computer laboratory without a warrant is illegal, even if the soldier consents.
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The prosecution asked the Supreme Court for permission to file the appeal on Tuesday. Its request was backed by State Prosecutor Shai Nitzan, since the ruling has implications for civilian cases as well as military ones. The court will now have to decide whether or not to let the appeal go forward.
The reason why the military court’s ruling could affect civilian investigations is because the regular police have adopted Military Police protocols for searching phones without a warrant if the suspect consents.
The prosecution’s request asked the Supreme Court to rule on two main issues. First, can investigators search a cellphone without a warrant if the suspect consents? Second, if so, what information do investigators need to give the suspect to ensure that he is granting informed consent?
The military appellate court’s ruling, handed down in November, 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 if the soldier consents. It then acquitted B., the appellant, of various drug charges because the evidence against him was obtained via a lab search of his phone without a warrant.
The ruling greatly concerned military prosecutors, because it could lead to acquittals in many pending cases against soldiers.
In its request to the Supreme Court, the military 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, it argued, the distinction the appellate court drew between manual and laboratory searches was baseless, since even manual searches by a trained investigator are comprehensive enough that the difference between the two types of search is insignificant. Nevertheless, it acknowledged, lab searches do have some advantages, among other reasons because they can “give a complete picture of the relevant material and its context.”
That 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.
Massive IDF use of computer searches
Moreover, the Military Police make massive use of such searches. In 2015, according to Military Police data, 2,207 soldiers’ phones were searched, but warrants were obtained for only about 30 percent of these searches; the other 70 percent relied on the soldier’s consent. About half of all cellphone searches produced incriminating information.
So far this year, 1,838 soldiers’ phones have been searched, with 52 percent of these searches based solely on the soldier’s consent.
A military source said that between 2014 and 2016, the Military Police reduced the total number of cellphone searches by about 25 percent and the number of searches relying solely on the soldier’s consent by about 50 percent.
The IDF Spokesperson’s Unit confirmed that a request for permission to appeal was filed on Tuesday. It said the request argued “that there is no legal justification for distinguishing between consent to a manual search and consent to a computerized search, since a computerized search is more accurate and reliable, so suspects shouldn’t be barred from consenting to it; and that if a suspect can’t consent to a computerized search of his mobile phone, this would likely undermine the conduct of the investigation.”
The military defense attorneys’ corps said it would “continue its battle against the violation of soldiers’ privacy” during Military Police investigations. During such probes, it said, “soldiers are routinely asked to allow invasive searches of their mobile phones. We’re convinced that this battle over basic human rights will bear fruit in the Supreme Court as well.”
The defense corps will be represented at the Supreme Court by Maj. (res.) Adi Rittigshtain Eisner and Capt. Omer Knobler. Rittigshtain Eisner is the attorney whose successful appeal of B.’s conviction produced the Military Court of Appeals ruling at issue.