For the investigator at the Netanya Police Station it was a moment of victory: the most important piece of evidence was in his grasp – or at least that’s what he thought. It was October, 2019, and the cellphone belonging to A., a 21-year-old Netanya resident suspected of property crimes – contained clear-cut evidence that he was involved in cannabis trafficking. According to the suspicions, the deals were made using the Telegrass app, where he called himself “son of Mr. Chocolate Milk.”
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But the way the investigators had found the so-called smoking gun was problematic, to put it mildly: An investigator admitted in court that the evidence was found using a search warrant based on suspicions of property crimes. Only after finding the evidence did they issue a new search warrant based on suspicions of drug-related crimes in order to retroactively “legitimize the findings.”
Thus were the police able to download all the content on A.’s phone after it was confiscated from him and to reach the drug purchasers. The indictment against A. on four counts of drug trafficking was issued with dizzying speed in late October. But to the displeasure of the police, Netanya Magistrate’s Court Judge Merav Greenberg dismissed the charges due to an illegal and unauthorized search. She added that the search had “seriously damaged the values of the rule of law and public faith in the justice system.”
What’s more, the investigator told the court during the hearing that he usually accesses the information on seized cellphones himself, despite the fact that the law only allows authorized investigators who have been specially trained to do so. In this regard, Judge Greenberg described his behavior as “clearly a fishing expedition that sometimes produces incriminating materials.”
The story doesn’t stop with A. Greenberg’s verdict exposed a system that should keep everyone who values their privac awake at night. Requests for cellphone searches are made to a magistrate’s court judge without the presence of the accused, and are quickly approved. The state defender’s office says the process does not allow proper oversight.
Using this method, the police now hold material downloaded from tens of thousands of confiscated cellphones. However, the extent of the phenomenon is much greater: The data held by police also include private details of third parties who were in touch with suspects whose cellphones were seized, so it is difficult to assess how many people are affected.
The practice has left the state defender’s office questioning what oversight there is regarding this huge amount of data, and whether wrongful use is made of the materials that provided a peek into people’s private lives, as was done in the case of A. “There is a huge difference in the extent of information and damage between a search of a physical locale like a suspect’s home and a cellphone search,” says Gil Shapira, the chief of prisoner representation in the state defender’s office. Cellphones contain huge amounts of information, Shapira notes, including WhatsApp messages, access to social media, email addresses and photos of people not connected with the suspect.
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“A person’s whole life is in there, and a reasonable person is not aware of the extent of information or the various apps” he says. “For example, if we have 10,000 searches a year, the police are in possession of information on millions of people – and the problem is that you don’t know what they do with it. Do they obtain intelligence from it? Do they collect evidence for other cases? There’s no outside oversight over this.”
According to Shapira, even if the police were strict about limiting their searches to relevant matters, the downloading of content of every cellphone means invasion of privacy has already happened. Since the damage here is great, the way to deal with such a search is to hold a hearing in the presence of both sides. This way, the search is as proportionate as possible and the judge can properly uphold the legal provision that privacy not be harmed unnecessarily.”
A ‘very broad’ warrant
The issue of illegal cellphone searches of suspects has increasingly preoccupied the justice system recently. A., for example, was acquitted based on a precedent-setting ruling in April by Supreme Court Justice Yosef Elron on the matter of Prime Minister Benjamin Netanyahu’s advisers, Jonatan Urich and Ofer Golan. The court harshly criticized the police in that case for conducting an illegal search of the cellphones of the two men, who stood accused of badgering a witness, Shlomo Filber, in the Bezeq-Walla affair.
A final ruling in Urich and Golan’s case is expected soon, after an appeal was lodged. Along with that, last month a hearing was held before a bench of three justices on the matter of the search of cellphones of drug trafficking suspects.
Disputes have come to light recently about searches of phones and computers belonging to the freelance journalist known as Ishton. While the Rishon Letzion Magistrate’s Court judge claimed that this was a “limited search,” the appeals judge in the Lod District Court, Varda Plaut, said the warrant was “very broad.”
The extent of the phenomenon certainly warrants judicial attention. Based on police figures, over 20,000 search warrants for cellphones are issued annually. A police official said a new record of more than 24,000 cellphone search warrants was reached in 2019.
So far the courts have been critical in light of these figures, but the police have not formulated clear procedures on the matter, other than a general statement that “searches will be carried out in a manner that does not harm unnecessarily a person’s privacy.”
In addition, the state prosecutor’s directives on proper cellphone searches were given in a case now before the Kfar Sava Magistrate’s Court, where most of the charges were dropped.
The man who brought the matter to light is attorney Kobi Sudri, who is now in a hearing before the High Court of Justice against the state prosecution and the police. “What spurred me on was the atrophied and frightening legal reality in which the courts almost routinely rubber-stamp their approval of the police procedure for sweeping cellphone searches without any restrictions whatsoever,” he said. “In fact, they allow the police to look for anything they want, not necessarily connected to a crime.”
Sudri said that the situation was particularly infuriating because “it goes against the essence of the law designed to prevent such searches.” He referred to the issue of “search words,” and the claim that cellphone searches can be restricted to a specific word. Most defense attorneys are skeptical about these claims.
For example, in a case involving drug offenses now before the Petah Tikvah Magistrate’s Court, the police asked for a warrant to search the cellphone of a suspected drug smuggler. The only restriction was that the search would go back no more than 13 months.
Another issue came up in the many hearings on the case: Does the suspect have the right to appeal a police request for a cellphone search warrant? Or should the hearing take place only in the presence of the police, as is now common, to prevent the suspect from obstructing the investigation? Conflicting rules issued by different courts have brought this explosive issue all the way to the Supreme Court. In one case, judges in the Rishon Letzion Magistrate’s Court, and subsequently in the Lod District Court, rejected a demand by a former employee at the prime minister’s residence, Nili Kadosh, who is suspected of perjury, to be present at a hearing requested by the police to issue a search warrant for her cellphone. Supreme Court Justice David Mintz backed the ruling. In contrast, a number of Tel Aviv court rulings have confirmed the right of suspects to be present during a hearing regarding a cellphone search warrant, so they can present their case against it.
The police and the prosecution, for their part, claim that if every suspect is allowed to appeal a cellphone search warrant, the justice system will collapse. “Every year the police alone issue more than 20,000 search warrants for cellphones and computers,” the prosecution wrote to the Supreme Court ahead of the hearing held last month. “It is clear that giving the right of objection, including the right of appeal, even against a search warrant for a computer, will flood the judicial authorities with thousands of hearings, to the point of the collapse of the Israeli criminal justice system. If this right is given to suspects, every defense attorney will ask to exploit it fully, and a defense attorney who does not will be considered a failure.”
The police commented: “The Israel Police acts very strictly in searching digital media and in keeping with procedures. We note that the procedure is now being refreshed to suit it to changes in rulings and directives by the state prosecutor. We stress that the Israel Police handles digital evidence like any other evidence and in keeping with the law. The information received is used only to collect evidence so that the investigator can get to the truth in a case in keeping with a court-issued warrant. If suspicions arise during a search involving additional offenses not covered by the warrant, the police turn to the court for appropriate instructions. A hearing on a police request for a warrant is held in the presence of one party [the police] to prevent obstruction of justice.”