Search warrants have been a part of our criminal justice system since this country was founded, but when the Fourth Amendment to the U.S. Constitution was ratified in 1791, the Founding Fathers could not have possibly anticipated the advances in technology that are a part of our daily lives in the 21st century. Laptops, tablets and smartphones could not have been imagined at a time when even the telegraph had yet to be invented.
Likewise, the men who wrote the Bill of Rights could not have foreseen the technology that law enforcement agencies would use to conduct searches and seizures of private information. Technology moves faster than the laws that govern its use, so there is always a gap between the time a new privacy invasion device is invented and the time that legislators find a way to protect against it.
Fortunately, California lawmakers are working on strengthening the public’s protections against unwarranted invasions of privacy in the digital age.
Existing Law Provides Few Protections
Law enforcement agencies have been able to exploit the gap between technology and the slow-moving process of changing the law. Police can search the physical aspects of the phone, such as pulling the phone out of its case or opening the battery compartment (if the model has one). In situations where they actually believe evidence on the phone is likely to be immediately destroyed, police officers can search the cell phone without a warrant.
Nicole Ozer, an attorney with the American Civil Liberties Union (ACLU), explained, “While technology has advanced exponentially, California privacy law has remained largely unchanged. Law enforcement is increasingly taking advantage of outdated privacy laws to turn mobile phones into tracking devices and to access e-mails, digital documents, and text messages without proper judicial oversight.”1
The California Electronic Communications Privacy Act (CalECPA)
State Senator Mark Leno (D-San Francisco) authored Senate Bill 178, the California Electronic Communications Privacy Act (CalECPA), which is a bill that would amend California’s search warrant rules to protect electronic communication information from warrantless searches except in a few well-defined circumstances. The bill’s summary reads:
“This bill would prohibit a government entity from compelling the production of or access to electronic communication information or electronic device information, as defined, without a search warrant or wiretap order, except for emergency situations, as defined. The bill would define a number of terms for those purposes, including, among others, “electronic communication information,” “service provider,” and “electronic device information.” The bill would require a search warrant for electronic communication information to encompass no more information than is necessary to achieve the objective of the search and would impose other conditions on the use of the search warrant or wiretap order and the information obtained, including retention and disclosure.”2
CalECPA passed the Senate with a 39-0 vote on June 3, and has been sent to the State Assembly for its consideration. If it becomes law, the police will be required to obtain a warrant before they can access the digital data that is produced or stored in a variety of communications devices, such as desktop and laptop computers, smartphones, and tablet computers.
In addition, the law would prevent the police from using “stingrays.” These devices are cell-site simulators, which can be used to seize phone calls and text messages, and reveal the geographic location of a cellphone. Stingrays are indiscriminate, as the device will collect information not only from the target’s phone, but all information from any phone that is passed through a particular cell-site.
The bill aims to put California’s warrant requirements in compliance with last year’s Supreme Court’s ruling in Riley v. California that the police must obtain a warrant to search the contents of a phone.3
“The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought,” Chief Justice Roberts wrote. “Our answer to the question of what police must do before searching a cellphone seized incident to an arrest is accordingly simple — get a warrant.”4
Contact the Criminal Defense Attorneys at Wallin & Klarich
If you have been charged with a crime and you believe police unlawfully searched your property, an experienced and aggressive criminal defense attorney can be your strongest ally in your fight to win your case. At Wallin & Klarich, our attorneys have been successfully defending clients against all types of criminal charges for more than 30 years. Let us help you, too. Contact us today for a free, no obligation phone consultation.
With offices in Los Angeles, Sherman Oaks, Torrance, Orange County, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich criminal defense attorney near you no matter where you work or live.
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1. [Cyrus Farivar, “California bill requires warrant for stingray use,” ArsTechnica, March 25, 2015, available at http://arstechnica.com/tech-policy/2015/03/california-bill-requires-warrant-for-stingray-use/.]↩
2. [See, SB-178 Privacy: electronic communications: search warrant. (2015-2016), summary available at http://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml]↩
3. [Riley v. California, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014).]↩
4. [Id. at 2495.]↩