Israel's Top Court Broadens Definition of Illegal Hacking

Justices rule that even entering unlocked computer without password could be illegal, say proof of criminal intent unnecessary

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Any intrusion without approval into a computer could be a criminal act, the Supreme Court ruled Wednesday in a precedent-setting decision.

Supreme Court justices Elyakim Rubinstein, Menachem Mazuz and Hanan Melcer ruled in the government’s appeal in the case of Nir Ezra, who was convicted of a long list of criminal acts, including hacking into a computer to carry out another crime.

To draw a comparison, Rubinstein said that just as breaking into a house that is not locked is illegal, so hacking into a computer that does not require a password would be illegal. Rubinstein said there was a need for common sense while paying attention to the intent and essence of the law and the logic behind it.

Last year a lower court partially accepted Ezra’s appeal and determined “only intrusion into the ‘innards of the computer’ establishes the foundations of the crime of intrusion into computer materials to commit a different crime.”

The Supreme Court justices, who heard requests from both sides to hear the appeal of the District Court ruling, decided to relate to this limited definition and overturn it.

Rubinstein wrote that the term intrusion should be given a broad interpretation. This interpretation reflects the intent of the law, and prepares for the future so that all data “entering” the computer, regardless of its source, would be included; and the definition should not be limited to certain specific technologies, so that the law will not need to pursue the rapid changes in technology, he said.

In addition, Rubinstein said the definition of “illegal” must also be expanded to include not just hacking and impersonation. Every intrusion into a computer without permission is in fact illegal intrusion, he ruled. Premeditated intrusion could also serve as a claim for harsher punishment, but a lack of such intention does not make it legal. Rubinstein wrote that the appropriate interpretation of “illegal” in such a case means intrusion without permission of the owner.

Jonathan Klinger, a lawyer who deals with law and technology issues, told Haaretz that this is the first time the Supreme Court has dealt with the fundamental issues of the crime of computer intrusion. So far the issue was unclear whether a person who enters an unprotected system is violating the law, or what happens when you enter a system using a lie, such as “I am over 18.” Now it is clear that entering a computer without a password is still illegal and constitutes intrusion, but this also includes such cases as someone picking up your smartphone and looking through the information in it, he said.

The court has focused on the element of “without permission” and made it the most important aspect of the crime, attorney Yoram Lichtenstein told Haaretz. But because of the technological differences, the court is obligated to consider each case on an individual basis, and to be wary in cases of “minor matters.” The court said not everything needs to be considered a real crime, explained Lichtenstein.