The High Court of Justice rejected a military prosecution appeal on Monday that sought to overturn a previous court ruling barring warrantless searches of soldiers’ cellphones.
The decision led by the court’s president Miriam Naor did not take a stance on the military prosecution’s argument – that only a soldier’s consent is needed to search his or her cellphone, not a warrant.
However, Naor said that legislation should be considered, not an appeal in the courts, if warrantless searches are necessary.
The High Court said that a previous ruling by a military court of appeals in November 2016 stands. The decision requires the military police to obtain a warrant to search soldiers phones, even if the soldier consents to the search.
“The fundamental question before us is whether the consent of the suspect is adequate in order to authorize investigators to search a mobile phone – this question will remain theoretical and will not affect the outcome of the procedure,” the court’s decision said.
The issue began after a soldier was convicted of drug use last year following evidence found on a search of his cellphone.
The military defense attorney successfully overturned the conviction arguing that although the soldier gave consent to the search he was unaware of how thorough it would be and thus the evidence should be disqualified because it was obtained without a proper judicial order.
At a hearing on Sunday, Naor said that searching a cellphone “is sometimes more than entering a house, it’s getting deep into the soul,” Ynet reported. Judges Uzi Vogelman and George Kara joined Naor on a three-judge panel to reject the appeal.
The decision comes as Attorney-General Avichai Mandelblit issued a legal opinion on Sunday stating that warrantless searches are legal if the suspect gives consent. Mandelblit argued that once someone agrees to be searched they have waived their privacy rights.