October 23, 2015 By Wallin & Klarich

warrant to search cellphoneUnder current law, law enforcement cannot simply search your or your property in most cases. In order to conduct a valid search, police must seek a search warrant. However, a warrant can only be issued if there is probable cause to search you or your property.

Unfortunately, this same protection does not extend to electronic communication information or electronic device information. In other words, your mailbox is protected more than your email folders. Law enforcement officials can freely peruse your smartphone information or Macbook data without having to obtain a search warrant, and they often do so from remote locations without you ever knowing.

Luckily, this could all change if a bill awaiting California Governor Jerry Brown’s approval is passed into law.

Proposed Law Would Require Search Warrants for Electronic Devices

The proposed law would add a new section to California Penal Code Sections 1546 that would require authorities to obtain a search warrant before conducting any kind of electronic surveillance. This type of behavior typically includes tracking cellphone locations, checking phone records, accessing emails and viewing online browser histories.

In addition, the bill would protect service providers such as Verizon, AT&T and Time Warner Cable. It will be illegal for government officials to compel these service providers to provide them with information about their clients. However, a search warrant can be issued to obtain this information, or the service provider can voluntarily turn over this information as long as it is done in a manner that does not violate state or federal law.

Exceptions to the Proposed Law

search warrant FacebookThe law includes some exceptions that allow law enforcement to acquire electronic communication information. For instance, authorities would be allowed to access electronic device information if:

  • They have the specific consent of the authorized possessor of the device
  • They have the specific consent of the owner of the device, only when the device has been reported as lost or stolen
  • The government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information
  • The government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the entity shall only access the electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device; OR
  • The device is seized from an inmate’s possession or found in an area of a correctional facility under the jurisdiction of the Department of Corrections and Rehabilitation where inmates have access and the device is not in the possession of an individual and the device is not known or believed to be the possession of an authorized visitor

When Will the Law Pass?

In its journey to become law, the bill recently was approved by the California state assembly. The proposed law had already been passed by the state senate this past June. Now, it will return to the senate for final approval and head to the governor’s desk.

Governor Brown has vetoed similar bills over the past few years, so there is some reason to suspect that he will veto this proposal before it can become law.

What Do You Think?

Do you think police should need a warrant before searching your electronic information? Have you ever had your cellphone or electronic communication searched by police? We want to hear what you think about this issue. Please let us know your thoughts in the comments section below.

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