"If you like to attend political rallies, parades, protests or sit-ins, you might consider leaving your cellphone at home in the unlikely event arrests are made. A recent California Supreme Court decision allows police to rummage through all of the private information on your smart phone as part of an arrest, including your text messages and e-mails. This warrantless search is now legal in California, regardless of whether the information on the phone is relevant to the arrest or if criminal charges are ever filed." These words open an opinion piece by Senator Mark Leno (D-San Francisco) concerning his SB 914, which would fill in the personal privacy exposure left by the high court's decision, and which now awaits final action on the Assembly floor.
Law enforcement has long had the right to search an arrestee to maintain officer safety and avoid destruction of evidence. Generally, this included searching their clothing and other incidental items, such as a pack of cigarettes, where weapons or drugs could be hiding. Until now, smart phones were not included in this search.
The recent Supreme Court decision changed all that and raises many privacy concerns. With rapidly advancing technology, cellphones have become more than just a device used to make a phone call. They store a wealth of personal information, including private correspondence from spouses and loved ones, photographs, banking records, proprietary information from businesses, medical data, passwords, web-browsing history, and even GPS systems to track a person's whereabouts.
Smart phones are essentially our personal mobile computers. The simple fact that technology allows us to store all this information in our portable phones instead of our homes doesn't give government the right to view them at will. Such an intrusive search is a violation of your privacy, and could allow authorities to incriminate you and others, even if it is not related to your arrest.
Earlier this year, I introduced a bill that would protect Californians against the Supreme Court decision allowing warrantless searches of the private information contained in portable electronic devices, including cellphones. Senate Bill 914 clarifies that an arrestee's cellphone can only be accessed with a warrant, except in circumstances where there is an immediate threat to public safety or the arresting officer. It acknowledges that accessing information on a cellphone is fundamentally different than searching an arrested person's wallet, cigarette pack or jeans pockets.
While SB 914 provides critical privacy safeguards for Californians, these protections are not new. Until the California Supreme Court decision earlier this year, state and local police correctly assumed that the state's constitutional privacy protections prohibited warrantless searches of cellphones during an arrest. In addition, the Ohio Supreme Court has ruled that cellphone searches require a warrant, and federal law enforcement agencies also abide by the warrant protocol.
In most cases, searching a cellphone immediately during an arrest is an extraordinary measure. Once an arrest is made and the arrestee's belongings are confiscated, a warrant for a cellphone search can be obtained if it is important to a criminal case. SB914 will help ensure that a simple arrest – which may or may not lead to charges – is not used as a fishing expedition to obtain a person's confidential information.
SB 914 is sponsored by the First Amendment Coalition, the American Civil Liberties Union and the California Newspaper Publishers Association. The bill passed the California Senate in June with significant bipartisan support and is working its way through the Assembly. I expect that we can get it to the Governor's desk in late summer with the hope of his signature.
A Bakersfield Californian editorial put the threat to journalists in particular even more clearly.
Why is this important? Because the Diaz decision infringes on the unique protections that allow working journalists to protect sources and unpublished notes from government's prying eyes. It's information protected from subpoena under the California Shield Law and by the absolute prohibition on the search of newsrooms contained in the Penal Code. But none of that means anything if the contacts, notes, photos and newsroom server connections that may be found in a journalist's mobile phone have all the protection of a confiscated pack of Marlboros.