"The differences in views and approaches support the conclusion that it is preferable to conduct a legislative process by means of checks that the court is unable to perform... It is possible that the proper solution is not far off - and partially coincides with the proposals proposed by my colleague, Justice Elron, but a broader perspective is still needed to create a balance between the violation of privacy on the one hand, and the requirements of the investigation in the digital space on the other. It seems that such an examination will benefit from the views of technology experts, officials on behalf of the State Attorney's Office, the Public Defender's Office, the police, and the judicial system. In summary, my approach is that this is the best way to go, if the legislature wishes to consider a rule of a hearing in the presence of both parties in an application for a search warrant for computer material" (paragraph 19 of my opinion).
In other words, even if we are reluctant to create exceptions and even if we recognize the need for them, this is a change that is not appropriate because the court will create. Even if the intentions are good and the purpose is to approach the interrogee, we must be careful of a situation in which every rule has an exception and every exception has an exception to an exception, especially when it comes to exceptions that are not well defined and delineated. We must be sensitive to the need for the police to investigate within the limits possible. If there is a constitutional problem, the court must of course address it and provide a specific response to the constitutional violation, but it should not necessarily be deduced from this that the court must assist in determining the various procedures in a sweeping manner. There is a problem with the court making exceptions in such a matter. The legislature has examined the matter, and if there is a need for change, it should be based on the experience of attorneys, defense attorneys, police officers and other experts, and even judges, while holding hearings in the appropriate committees.
- On the individual level, my colleague the President presented three examples of exceptional situations that are suitable for holding a hearing on the status of the interrogee even before the search warrant is issued - when a professional enjoys legal privilege, and whose presence is necessary to check whether there is justification for the issuance of the warrant or its conditions; when there is a defect in the conduct of the investigating authority that may affect the acceptance of the request; or when the request is based on partial or inaccurate information.
A professional who enjoys privilege under the law. Insofar as we are dealing with a professional who is the suspect in the case, it seems that the reasons that led to the establishment of the rule of ex parte hearing are valid: the need for a quick and efficient investigation and the prevention of the suspect from exploiting the hearing in the presence of both parties. Just as there is no exception to the right of appeal in this context, there is also no reason, in my opinion, to create an exception to the rule of ex parte hearing. There is also a difficulty in determining a kind of "different status" for suspects in these professions. Even a citizen who is not such a professional could claim, if he had been given the opportunity, that his phone contains, for example, intimate photos of others. Moreover, it can even be argued that if weight is given to the privilege, weight should also be given to other interests that must be balanced against the privilege, such as the severity of the offense: should a lawyer who is suspected of committing a serious offense be lenient as opposed to an engineer who is accused of a minor offense?