Police must obtain judicial warrants to search suspects’ phones, High Court rules

The High Court of Justice ruled on Sunday that police cannot search phones or other electronic devices without a judicial warrant, even if the person to whom the devices belong gives consent to do so.

The ruling will only come into effect in 18 months, however, to allow the government an opportunity to regulate the issue through legislation, the court decided.

The issue reached the court when the Public Defender’s Office filed a petition against the procedures currently in place, which allow police to search the phones of suspects if they obtain consent, without the need for a search warrant.

In the petition, the Public Defender’s Office pointed out that even if a suspect consents to having their phone searched, they have very little time to consider the implications of the request.

The petition also argued that not only is the suspect’s privacy violated by a search of their electronic devices, but also the privacy of anyone they have corresponded with. As such, the argument that a suspect’s consent is all that’s needed is invalid, it argued, as they cannot consent on behalf of third parties.

On the opposing side of the issue were the Israel Police, the offices of the attorney general and the state attorney, which argued that being able to search a suspect’s electronic devices is a crucial tool for law enforcement, and that, in the event that the suspect is innocent, it speeds up the process of proving their innocence.

The case was decided by a panel of three judges — Supreme Court President Isaac Amit, Deputy President Noam Sohlberg, and Justice David Mintz — who ultimately accepted the position of the Public Defender’s Office, and ruled that the current practice of merely asking the suspect for consent is a severe violation of privacy, both for the suspect and for any third parties they have communicated with.

Yet, the panel also partially accepted the argument that such a search is an important law enforcement tool and so allowed an 18-month delay for the ruling to take effect, giving the Knesset time to draw up legislation to regulate the system of issuing judicial warrants, thus making the process smoother going forward.

The justices stressed, however, that the process of obtaining a judicial search warrant would not be a “technical-procedural requirement, but rather a substantive requirement.”

The practice of merely asking a suspect to consent to their devices being searched is not adequate, the judges explained, due to the pressure to consent that a suspect will likely feel due to the power imbalance between the police and citizens.

Amit, in the ruling, stressed that the privacy violation that comes with a phone search is severe, as phones more often than not serve as “a computer, a camera, a telephone, and many other functions, due to which the device is perceived by many as a ‘conduit’ to the outside world.”

“The intensity of the violation of the suspect’s and third parties’ right to privacy is clear,” Amit wrote.

Until the ruling takes effect, the court stressed that police must ensure that suspects give not only consent to a phone search but informed consent, meaning that the suspect understands the full extent of what is being asked of them.