ISRAELI COURT RULING: BORDER CONTROLLERS

An Israeli District Court ruled that border controllers may not search a person’s phone without explicit legislative authorization, even if the person gave his “consent” to the search. In this case, the judge also ruled that because the evidence was obtained due to a violation of privacy, any record of the decisions made as a result of this evidence would be deleted.

The essence of the legal question
The District Court’s ruling deals with the question of the power of representatives of the Population and Immigration Authority at the airport (border controllers) to ask those entering Israel to hand over smartphones and search them. In addition, the question arose about the lawfulness of the decisions made based on the evidence obtained from the cell phone search (In Israel, the “fruits of the poisoned tree” doctoral thesis is not fully recognized).

Background
Ukrainian citizens who are residents of Poland asked to enter Israel for a family visit and were detained at the airport. During the questioning, the woman’s phone was taken and searched, according to the authority documentation, before the appeals court “with the knowledge and consent” of the woman.
Both spouses were deported to Poland. Due to concerns about the implications of the deportation for future entry into Israel, the couple continued legal proceedings. The main argument concerned that most of the decision was based on improper evidence obtained concerning a severe violation of privacy.

The Court’s Decision
The right to privacy is enshrined as a fundamental right in the Israeli system. Constitutional privacy reflects the democratic character of the state. Even if the definition of privacy is vague, there is no dispute searching a smartphone constitutes a severe violation of privacy in light of the vast amount of comprehensive and personal information contained therein.

The judge extensively reviews the Israeli Supreme Court’s rulings in the Urich case (a “consensual” search without a warrant as part of a police investigation) and the use of location data in connection with the fight against the coronavirus pandemic to establish the argument that even where a search is carried out according to the law, the authority should be exercised narrowly with minimal violation of the right to privacy, as much as possible under the circumstances of the case.

A review of the powers of border controllers shows that the law does not authorize them to conduct such a search. No specific procedure (empowers border controllers to search the property of those entering Israel, let alone mobile phones.

The search of phones constitutes a severe violation of privacy, in addition to the harm being made due to taking a mobile phone, leaving the person unable to contact relatives or lawyers for long hours.

The authority’s claim that “consent” was given by the phone’s owner is irrelevant. Consent does not prevent the need for legal authorization, as required by the limitations clause of the Basic Law: Human Dignity and Liberty.

The judge also ruled that it is doubtful that a person’s “consent” can be considered lawful consent, given the power gaps between those in authority and the citizen – all the more so when it comes to a non-Israeli citizen. It should also be emphasized that there was no record of the presentation of the question and the woman’s consent in the case at hand, and the questioning itself is written briefly. Therefore, the Authority’s argument that there was voluntary consent in the case at hand was rejected.

Summary of the Decision
As long as the law or procedure ¹ does not regulate the authority of border controllers to search the computers or laptops of those wishing to enter Israel, this is prohibited. The Population Authority must make it clear to all border controllers that they are not permitted to search the mobile phones of foreign citizens (and, of course, citizens) arriving in Israel. Even if a person who is not an Israeli citizen has no vested right to enter Israel, the Authority must treat those entering Israel with respect and caution and not take lightly the damage caused to them by refusing to enter Israel. In this case, the decision to refuse entry relied mainly on a text message observed in connection with the violation of the woman’s privacy and dignity. Therefore, the decision of the authority must be invalidated. Indeed, according to Israeli case law, evidence collected by way of invasion of privacy can sometimes be legalized, but balancing between the severe violation and the possible benefit of denial of entry – especially where there was no legal authority to search the cell phone – all records regarding those wishing to enter must be deleted, and any future prevention of them from entering Israel – will be removed.

The court Decision: 
(Tel Aviv-Jaffa) 12780-01-23 Ilona & Mykhailo Muzyehukv. Population and Immigration Authority (11/7/2023), Judge Michal Agmon-Gonen
                                                                                         

¹ The judge refers to the possibility of regulating the authority in the procedure but does not indicate
what the legal arrangement is that would allow such an intrusive authority to be anchored in the
procedure alone.