Israeli Supreme Court Determines What Is Considered Unlawful Intrusion to Computers

By‎ עו"ד דותן המר

שותף בקבוצת הסייבר, הפרטיות וזכויות היוצרים במשרד פרל כהן צדק לצר ברץ

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The Israeli Computers Law criminalizes intrusion into computer material. This week, for the first time, the Israeli Supreme Court addressed the question of what exactly constitutes intrusion into computer material. The Supreme Court held that the term “intrusion” must be interpreted broadly. Unlawful intrusion should not be limited only to conduct that circumvents technological barriers (“a house without a lock is not a ‘free-for-all’ – and so is the law regarding computers”). Any access to a computer absent the owner’s permission or some other legal authority will be considered an “unlawful” intrusion.
 
Justices Rubinstein, Mazuz and Meltzer agreed that the interpretation of the term “intrusion” should be technology-neutral. “The legislator’s perception in regulating unlawful intrusion was not focused on the means of intrusions, but its dangers and purposes”. The law is intended to protect social values and it makes no difference what technical means are used to impair these values, the Court said. 
 
Circumvention of a technological barrier may very well have significance in indicating lack of consent to access the computer material. The court held that overcoming a technological barrier is more severe than a “rudimentary” intrusion, but the foregone conclusion is the need for harsher sentencing in cases involving the circumvention of these barriers, rather than granting blanket immunity where no technological barriers are installed (and therefore not there to be circumvented).
 
Deputy Chief Justice Elyakim Rubinstein indicated that he is aware of the concerns of over-applicability of the offense If penalization would depend on lack of consent of the computer owner. Are we likely to now see accused defendants whose only wrongdoing was visiting a website whose terms and conditions prohibit such use? The Court dismissed this concern. Although the Court’s holding indicates that the prohibition does cover such trivial actions, “and it is possible that such actions may include using somebody’s computer to post, in his name, casual humorous content on social networks” – a narrow interpretation of the offense’s elements should be avoided because many egregious acts would then not be criminalized under the offense. 
 
The Court ruled that “the massive potential damage involving computer crimes requires us to adhere to broad interpretation and seek ways to reduce the complexities associated with it; this can be done by using common sense as well as a de minimis exception”. The Court expressed confidence that the prosecution system would properly distinguish between the important and the trivial, and added that if they fail to do – the judiciary will use its discretion to serve justice. {Leave for Criminal Appeal 8464/14, 8617/14 Ezra v. The State of Israel. Click here for the judgment, in Hebrew}