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 Law enforcement is increasingly taking advantage of outdated privacy laws to turn mobile phones into tracking devices and to access e-mails, digital documents, and text messages without proper judicial oversight.”1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:
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
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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.]↩