Israel Took Data From Russian Hacker's Phone Without Warrant, Documents Reveal

Investigative materials released on Haaretz’s request reveal Israeli police’s controversial conduct with Aleksey Burkov, which public defenders say infringed on his rights

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Russian hacker Aleksey Burkov at the High Court, November 3, 2019.
Russian hacker Aleksei Burkov at the High Court of Justice, Israel, November 3, 2019.Credit: Oren Ben Hakoon

The Israeli investigators who interrogated Russian hacker Aleksey Burkov following his 2015 arrest at Ben-Gurion Airport copied the content of his cellphone without a warrant and pressured him heavily to cooperate with the U.S. Secret Service, according to the investigative materials released at Haaretz’s request.

The U.S. Secret Service – which aside from guarding the president is responsible for fighting fraud – suspects Burkov of selling credit card details of around 150,000 Americans to online criminals. In 2015, an international arrest warrant was issued for the St. Petersburg native and he was charged in a Virginia court with several counts of fraud, identity theft, computer hacking and money laundering.

According to the Israeli investigative materials – 22 pages that the Jerusalem District Court released out of about 100 documenting the Israeli investigation – Burkov did not have to answer questions by the Secret Service officers who flew in to interrogate him. Also, at the beginning of the process, the Public Defender’s Office provided him with a lawyer who did not specialize in extradition requests.

The investigative materials have been released after the Jerusalem District Court rejected the state’s request to keep them confidential.

Burkov, who is now 29, was extradited to the United States two weeks ago despite pressure from Moscow. Since his arrest, Burkov has insisted that the Israeli authorities have violated his rights. The Russian Embassy in Israel has also criticized the harming of Burkov's rights.

The Jerusalem District Court and the Supreme Court did not reject these allegations but ruled that the truth would come out at his trial, while the Israel Police said the case was handled according to the law and was accompanied by legal council.

Burkov is also of note because the parents of Naama Issachar had hoped their 26-year-old daughter, who is serving a seven-and-a-half-year prison sentence in Russia after being caught at Moscow Airport with 9.6 grams of hashish, would be swapped for the hacker.

A conversation or an interrogation?

Burkov was arrested on December 13, 2015 at Ben-Gurion after a week’s vacation in Tel Aviv. At 7:30 P.M. he was taken to an interrogation room at nearby Lod by Lahav 433, the police’s anti-corruption unit; two investigators from the U.S. Secret Service were waiting. They were joined by a Lahav 433 specialist in cybercrimes and one other Israeli investigator.

According to the investigative materials, Burkov was not told why he was being interrogated. The Americans first called the interrogation an interview, then a conversation, then questioning, and finally an interrogation. They told Burkov he did not have to speak with them and had the right to remain silent.

Russian hacker Aleksey Burkov detained in Israel attends a High Court hearing, Jerusalem, November 7, 2019. Credit: Oren Ben Hakun

The transcript of the interrogation indicates that Burkov was confused; he did not understand whether the investigation was an Israeli or an American one, what rights he had, and repeatedly asked for clarifications and legal advice.

The 22 pages show that he asked about 20 times to meet with the lawyer the Public Defender’s Office was sending, once saying, “I’m afraid of saying something wrong, understanding something wrong. I simply don’t understand what’s going on …. I’m afraid to sign something that’s mistaken.”

When he entered the room, he was asked by the interrogators to sign a form allowing everything on his phone to be copied. Unusually, they copied the content before he had signed the form: A Lahav 433 investigator named Boris asked Burkov to confirm in writing that the electronic devices found on him would be examined in his absence.

Burkov asked for clarifications but the Israeli investigator insisted that he sign, and Burkov signed. His lawyers say no warrant was shown and the case file has none.

According to a Supreme Court ruling, a police officer must inform a suspect that he may refuse to let his phone be searched in his absence and that this refusal may not be held against him. U.S. court rulings are different, but the interrogation was held in Israel, thus Israeli law applies.

“This document is in Hebrew, so you can write your words in Russian if you agree,” an interrogator told him. “You have the right to be present and ask for two witnesses while we’re copying your smartphone files,” he said, but added that “to speed things up, the files are being copied in the meantime.”

Boris said: “Here’s a synopsis of what's written in Hebrew that I’ve translated .... I want you to write the following: ‘I agree that electronic devices found on me will be examined in my absence in the presence of witnesses.’ You can write it in your own words.”

During a hearing on the extradition process at the Jerusalem District Court, the prosecution said Lahav 433’s questioning of Burkov without the presence of U.S. agents was done for the Americans, not as an Israeli investigation.

'They've come to give you a chance'

About two hours after his arrest, the Public Defender’s Office received a request to advise Burkov ahead of his interrogation and sent a criminal lawyer specializing in serious crime.

She advised Burkov to remain silent and determine whether the interrogation was being carried out under Israeli or American law; under American law, Burkov would have the right to an attorney in the room. She then asked her office to send a lawyer specializing in extradition, but the interrogation had already begun.

According to the investigative materials, the Israeli interrogator Boris repeatedly tried, even when his American counterparts were not present, to persuade Burkov to cooperate with the Americans. The American investigators told Burkov they could not talk with him because he insisted on a lawyer being present and the Israelis would continue to question him without them.

The sooner the Americans could talk with him, the sooner they could reach an agreement with him, Burkov was told by an American interrogator. At that point, Boris told Burkov, “In other words, it’s in your interest not to drag out the process and to answer the questions.”

Burkov was also told that the Americans had come for two days and if he did not answer the questions, they would leave and the extradition process would continue.

According to the investigative materials, he was told: “It could take weeks and you’d be in prison the whole time …. In America they would interrogate you according to American laws. They’ve come to give you a chance to expedite the process, to ask questions and understand what’s what …. If you don’t answer now, we’ll end this, let you spend the night in the cell and bring you back here tomorrow morning …. If you stay silent, nothing will change. The same faces, the same room, the same paperwork.”

And Boris told Burkov that the lawyer from the Public Defender’s Office was his lawyer and would come to court if his detention was extended. “She will get all the relevant documents that the law allows. Trust me, I know Katya a long time,” Boris said. “She’s an expert lawyer. She comes here quite a bit to represent Russian-speaking suspects …. She knows her job.”

Later, Burkov told the interrogators that the lawyer from the Public Defender’s Office told him that she was not yet his lawyer and that she did not know if the interrogators were working under American or Israeli law.

According to Michael Ironi, a representative of Burkov assigned by the Public Defender's Office, while Israel is asking Russia to treat their Israeli prisoner respectfully, it is trampling the rights of a Russian citizen.

For its part, the Public Defender’s Office said it had been asked to advise a fraud suspect ahead of his interrogation. When the lawyer arrived, she realized the interrogation had to do with an extradition process.

According to the office, when the lawyer realized that the case directly involved extradition, she told her office and a lawyer specializing in extradition was appointed. During the legal process, the office pointed out flaws in the police’s actions that impaired Burkov’s rights, the office said.

“It is important to note that the case is unique because extradition processes don’t usually involve interrogations by foreign authorities on Israeli soil,” the office said.

Israel Police said that the case was accompanied by legal council and conducted according to the letter of the law. "The court's decision is known to all and we have nothing to add on the subject," its statement said.

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