October 11, 2011 | By Trevor Timm

Governor Brown Vetoes Warrant Protection for Cell Phones

For the past six months, EFF has strongly supported SB 914, a bill recently passed by the California state legislature that would require police officers to get a warrant before searching through an arrested suspect’s cell phone.

Last month, the bill received overwhelming support from both Democrats and Republicans, passing the California State Assembly 70-0 and then the State Senate, 32-4. Despite such strong bipartisan support, Governor Brown disappointingly vetoed the bill (PDF) yesterday.

SB 914, written in response to the California Supreme Court decision in People v. Diaz, upheld basic constitutional principles. It just maintained Fourth Amendment protection to the contents of cell phones, requiring officers to show a judge there is probable cause that the phone has evidence of a crime before it is searched incident to arrest.

The bill was strongly opposed by law enforcement groups, yet SB 914’s effect on the police’s ability to do its job would be almost non-existent. As we pointed out in May, “cell phones pose no danger to the police, the threat of destruction of evidence can be easily remedied through simple preservation methods, and many arrests do not result in criminal prosecution at all.”

Privacy rights, however, will now take a major hit thanks to Gov. Brown’s veto.

As we warned when the bill was up for a vote, “Without SB 914, officers can use a pretextual arrest to casually browse the data on a person's cell phone for any reason, even if that person is never charged with a crime.” Smart phones, of course, contain a wealth of personal information, far beyond just call logs and address books. They store text messages, emails, photo albums, Internet browsing history and GPS location technology – and police will have unfettered access to all of it, even if they don’t suspect there is any evidence of a crime on the device.

This should be especially concerning for Californians involved in large protests and rallies. As we've seen in the recent Occupy Wall Street protests in New York, Seattle, Boston, and now San Francisco, the police have arrested protestors under a variety of pretenses. With Governor Brown’s veto, law enforcement will now be free to search through the cell phone of any arrested protestor and use its contents as evidence for alleged crimes that may have nothing to do with protesting.  Because individuals in such circumstances don't have court or legislative protection in California, they should be aware of just what kinds of information are stored in their mobile devices. Where possible, they should also consider taking technical steps, such as disk encryption, to protect their data.

Despite the obvious privacy concerns, Governor Brown’s statement noted “Courts are better suited to resolve the complex and case specific issues relating to constitutional search-and-seizures protections.”

But as law professor Orin Kerr explained, Governor Brown actually has it backwards: a temporary legislative fix is much preferable to waiting for the courts.

It is very difficult for courts to decide Fourth Amendment cases involving developing technologies like cell phones. Changing technology is a moving target, and courts move slowly: They are at a major institutional disadvantage in striking the balance properly when technology is in flux…In contrast, legislatures have a major institutional advantage over courts in this setting. They can better assess facts, more easily amend the law to reflect the latest technology, are not stuck following precedents, can adopt more creative regulatory solutions, and can act without a case or controversy.

In fact, just last week, the United States Supreme Court declined to hear an appeal of California v. Diaz, ensuring the ultimate issue would remain unresolved by the nation’s highest court in the near future.

SB 914 was a much-needed fix for privacy violations happening now. Two cases, both decided in the last few weeks, are stark examples of where the Diaz decision is rapidly taking us. The routine privacy violations that EFF predicted would happen are now real and dangerous and we need legislative action to correct them.

In In re Alfredo C (PDF), police arrested a juvenile suspected of vandalism for spray painting graffiti in an alley. Despite being caught literally red handed, with spray paint on his hands and clothing, officers searched the juvenile, found a digital camera, and searched it without a warrant. The search was found reasonable on the basis of Diaz.

Similarly, in People v. Nottoli, (PDF) the defendant was pulled over for speeding. While talking with the defendant, officers suspected he was under the influence of drugs and placed him under arrest. Despite finding plenty of evidence of drug use in the defendant’s car, officers decided to nonetheless search his cell phone without a warrant. Again, the court found that the opinion in Diaz justified the search.

While Governor Brown’s veto of SB 914 is a setback for cell phone privacy, we will continue to fight for your rights. With strong support from both parties in the California state legislature, as soon as the bill can be brought up again, EFF will make sure Governor Brown reconsiders his extremely disappointing decision.


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