On August 31, 2025, Israel’s Supreme Court, sitting as a High Court of Justice, ruled that the Israel Police was not authorized to search a person’s computer material (software or stored information) or mobile phone without a judicial warrant, even though the person consented to the search. (HC 8298/22 Public Defense v. the Attorney General.)
Applicable Law
The court considered the laws applicable to the case, including the Basic Law: Human Dignity and Liberty, which provides:
[7(c)] No search shall be conducted on the private premises of a person, nor in the body or personal effects …
8. There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.
Additionally, according to section 23A(b) of the Criminal Procedure Ordinance (Arrest and Search) Ordinance [New Version], 1969, as amended:
[A] search [of software or information stored on a computer through communication or connection with the computer, or by operating it, but excluding wiretapping] … shall not be conducted except pursuant to an order of a judge … which expressly states the permission to access computer material or produce output, as the case may be, and specifies the purposes and conditions of the search, which shall be determined in a manner that will not harm a person’s privacy beyond what is necessary.
In January 2016, the police issued a directive regarding warrantless searches of computer material with consent. In November 2020, the state attorney issued Directive 7.14, which determined that a search of computer material can occur based on the informed consent of the person being investigated, even without a warrant. In February 2021, the Police Investigation Division published a procedure manual regulating warrantless searches of computer material based on consent.
Parties’ Arguments
The petitioner argued that the police procedure regarding the warrantless search of computer material based on the investigated person’s consent contradicted the clear language of section 23A(b) of the Criminal Procedure Ordinance. They further claimed that such a search resulted in a serious violation of the right to privacy of both the suspect and third parties.
To protect against such violations, courts have established guiding considerations judges must review when evaluating whether to grant search warrants. An examination of those considerations, according to the petitioner, could only be possible when the investigating authority applies to the court for a search warrant for computer material. The investigated person has no ability to examine these issues and prevent excessive damage to his or her privacy and the privacy of other parties who may not be aware of the search. It is highly doubtful, the petitioner added, whether the owner of the device searched can waive third parties’ right to privacy.
Rejecting these claims, state respondents argued that section 23A(b) of the ordinance does not expressly state that consent is not sufficient to authorize a search, and section 23A(b) should not be seen as a negative arrangement that “would be capable of denying ‘the right of a person to waive a right granted to him by law, including the right to privacy.’ ”
State respondents further asserted that “a search that is carried out based on informed consent, voluntarily and in accordance with the limitations that the person being investigated himself determines in advance is a reasonable search according to law.” Moreover, it involves only a “minimal” violation of privacy. Requiring a warrant would also unnecessarily violate a suspect’s rights, according to the respondents, in situations where exonerating evidence is stored on a suspect’s mobile phone and a search could hasten the conclusion of the investigation. (Solberg paras. 11-12.)
Decision
Justice Noam Solberg, who issued the main ruling, recognized that an investigation by its nature violates a person’s right to liberty, privacy, and property. This is true for both those being investigated and other parties affected by the investigation. While evaluating the legality of an investigation, the interests of the victims of the crime and public safety must also be considered. This tension exists, as a rule, in all investigative proceedings, and especially in all matters relating to searches, Solberg wrote.
Solberg noted that the court in this case was dealing with searches of computers and smartphones, an issue it had previously addressed.
[G]iven the vast amounts of information stored on these devices, and the ability to form a comprehensive picture through this information regarding many aspects of a person’s life—including the most intimate ones—“the potential for privacy infringement due to a computer search is, in many cases, immeasurably higher than the ‘traditional’ search of a person’s yard or belongings, and it also concerns many third parties whose lives have been linked in one way or another—even for a moment—with the owner of the computer or smartphone” …
However, even in this context, there are ‘two sides to the coin,’ as the aforementioned characteristics result in “the intensive use of computers also turning them into a treasure trove of incriminating evidence and relevant information that can and should be used by investigative authorities in their fight against lawbreakers and offenders.” (Paras. 27-28.)
Solberg opined that Israel’s legislature intended section 23A(b)’s requirement for a warrant to address concerns about protection of rights, separation of powers, and the rule of law. The legislative history of the provision indicates lawmakers intended to strengthen the protection of the right to privacy by creating a “judicial buffer” between the police and the person subject to the search, and by providing the court with discretion regarding issuing a warrant. The language of the provision was explicit and clear and meant that a search of computer material should not be conducted except based on a judicial warrant, Solberg determined.
Solberg further rejected the respondents’ claim that, as a rule, it is possible to give up one’s rights based on informed consent. Some rights protect principal values or especially important interests and are sometimes characterized as inalienable or nonwaivable rights. Section 7(c) of the Basic Law: Human Dignity and Liberty establishes that “no search shall be conducted on the private premises of a person, nor in the body or personal effects.”
The legislature, according to Solberg, “did not see fit to define the element of non-consent as part of the scope of the [privacy] right’s interpretation.” (Para. 43.) Solberg suggested that there could be two possible reasons for this omission:
First, a search may cause an inherent violation of privacy, to such an extent that even if consent is given for its execution, it does not negate the violation. Second, in the encounter between the police and the citizen, the power disparities—which already exist—between the state and the citizen are magnified, both because the “ordinary citizen” may find himself in distress when faced with law enforcement, and considering their significant power and extensive authority. (Para. 43.)
Verdict
The Supreme Court accepted the petition and voided the procedure that permitted the police to search the computer material of interrogated persons, including their mobile phones, without a judicial warrant, relying on the consent of the interrogated person. The procedure must be voided within 18 months from the decision’s date. The court intended the delayed implementation to allow sufficient time for the issue to be regulated in legislation, to the extent the legislature sees fit to do so.
By Ruth Levush
December 5, 2025
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