John Diaz: California law on government searches needs updating to the digital age.
Gov. Jerry Brown vetoed legislation in 2011, 2012 and 2013 that would have required authorities to obtain a warrant before searching through smart phones and other electronic devices. Yet the author of those bills, state Sen. Mark Leno, D-San Francisco, has not given up — and this time has a set of unlikely and powerful voices behind his argument that the law on search and seizure needs to be updated for the digital age
His supporting chorus? Conservative justices on the U.S. Supreme Court who forcefully ruled in Riley vs. California last year that police need a warrant to search the cell phones of people they arrest.
Chief Justice John Roberts, writing for the majority in a unanimous ruling, all but scoffed at the U.S. Justice Department notion that searching a suspect’s mobile phone would be no different than going through his or her wallet, purse or address book.
“That is like saying a ride on horseback is materially indistinguishable from a flight to the moon,” Roberts said. He noted that the term “cell phone” is a misnomer. “They could just as easily be called cameras, video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps or newspapers.”
Era of unrestrained searches
The notion that government searches must be narrowly targeted and subject to judicial review dates to the American Revolution, which was driven in part by the furor over “general warrants” that allowed British officers to “rummage through homes in an unrestrained search” for evidence of criminal activity, Roberts reminded.
“The fact that technology now allows an individual to carry such information in his hand,” the chief justice wrote, “does not make the information any less worthy of the protection for which the founders fought.”
The ruling on cell phone searches follows the court’s unanimous 2012 opinion that attaching a GPS device to a vehicle to monitor its movements constitutes a search under the Fourth Amendment.
While the high court’s conclusions in those criminal cases clearly showed an appreciation for the privacy implications of evolving technology, plenty of ambiguity remains about the reach of those decisions, especially because the federal Electronic Communications Privacy Act has not been updated since 1986. Obviously, much has changed since the days when the Sony Walkman, the VCR and Pac-Man were in vogue.
The Supreme Court has left plenty of room for states to address the questions it did not answer. For example: Law enforcement cannot attach a GPS device on a car without a warrant, but could it achieve that goal by tracking an individual’s movements by cell phone without judicial review? How far can government go in compelling stored data from third parties — such as a phone company, Internet provider, e-mail service or social-media site — without a warrant?
Leno’s latest attempt at digital privacy legislation, SB178, takes a comprehensive approach to these search-and-seizure issues. It cements the principle that a search warrant is required for the government to gain access to Californians’ digital devices and archives — even when stored by a third party. It cleared the state Senate on a 39-0 vote.
“In Sacramento, privacy is not a partisan issue,” said Leno. “It’s a constitutional issue.”
Concerns over privacy protections
Supports of SB178 include many of the big names in tech: Google, Facebook, Apple, Twitter, Microsoft, among others.
“They’ve got to be concerned about privacy protections for their consumer base, which doesn’t want them sharing this type of information unnecessarily with the government,” Leno said. “It puts them between a rock and a hard place.”
The California Newspaper Publishers Association also has pushed for the bill, noting that journalists need to “maintain sensitive source information and unpublished notes without being subject to routine access by law enforcement and litigants.”
What is especially remarkable about that unanimous vote is that it came over the objections of associations of the state’s district attorneys, police chiefs and sheriffs — three groups that rarely lose in the State Capitol.
“On its face, we have to question how necessary it is in California,” said Sean Hoffman, director of legislation for the California District Attorneys Association, adding that, unlike other states, “we can’t get anything without judicial review in California.”
Hoffman cited specific concerns about the measure. For example, he noted that authorities typically have a 10-day period to execute a search warrant, but SB178 limits the execution to one specific day for stored communications. And once information is obtained, authorities are under a time constraint to determine what is relevant to the case — and then must destroy the rest.
“That’s problematic for us,” Hoffman said of destroying what could be potential evidence while a case is still pending.
It’s significant to note what the district attorneys are not saying. They are not resistant to the fundamental concept of the bill: that government access to digital devices and archives needs judicial review. In fact, Hoffman said, the association’s objections were “not completely insurmountable hurdles” and he hoped to work with Leno’s staff to resolve them as the bill moves through the Assembly.
Ultimately, the outcome may come down to Gov. Jerry Brown, who has famously declared that “not every human problem deserves a law.” This one helped stir the American Revolution. It deserves a 21st century law.